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"US vs. Shine" to cover up "Shine vs. US"

Pages 1- 44 - Transcripts - Vol. I

A FRACTION OF EVEN THE "OFFICAL" RECORD IN WHAT HAS GONE ON

"PRE-HEARING SETTLEMENT CONFERENCE"

United States of America/ Department of Homeland Security/ Department of Transportation/ U.S. Coast Guard

vs.

Eric Shine [?]

Full Text :
Note: Observe enormous "Parties in Interest/ Complainants" who filed a formal complaint against Lt. Shine?

Parenthetical notes for some brief explanations....

2

3 UNITED STATES OF AMERICA

4 DEPARTMENT OF HOMELAND SECURITY

5 U.S. DEPARTMENT OF TRANSPORTATION

6 UNITED STATES COAST GUARD

7

8

9 HON. PARLEN L. McKENNA, JUDGE

[note: Judge McKenna tied closely to USCG OFficer, Lt. Tribolet who brought the COUNTER-charges on behalf of the "UNITED STATES" and Shipping Companies and Federal Officers' Labor Union in direct retaliation to cover up larger corruptions............]

10

11
UNITED STATES COAST GUARD, )

12 Complainant, )
)
13 vs. ) No. CG S&R 03-0166
) USCG Case No.MISLE
14 ERIC NORMAN SHINE, ) 1671475
)
15 Defendants. )
)
16

17

18 VOLUME I

19 REPORTER'S TRANSCRIPT RE PROCEEDINGS

20 Tuesday, August 26, 2003

21

22

23 REPORTED BY: Judy M. Skidmore, CSR No. 8479

24

25

1

1
UNITED STATES OF AMERICA
2
DEPARTMENT OF HOMELAND SECURITY
3
U.S. DEPARTMENT OF TRANSPORTATION
4
UNITED STATES COAST GUARD
5

6
HON. PARLEN L. McKENNA, JUDGE
7

8
UNITED STATES COAST GUARD, )
9 )
Complainant, )
10 vs. ) No. CG S&R 03-0166
) USCG Case No. MISLE
11 ERIC NORMAN SHINE, ) 1671475
)
12 Defendants. )
)
13

14 APPEARANCES OF COUNSEL:

15

16 For Complainant UNITED STATES COAST GUARD:

17 LT. BRIAN HILL
and
18 LT. DARREN HOPPER

19 For Respondent ERIC NORMAN SHINE:

20 FORGIE, JACOBS & LEONARD
BY: PETER S. FORGIE
21 Attorney at Law
4165 East Thousand Oaks Boulevard
22 Suite 355
Westlake Village, California 91362

[attorney hired by FRANK BRUCCELERI who was first attorney forced upon MR Shine by pre-existing DEFENDANTS from Federal District Courts in Los Angeles, that include TED OLSEN'S law firm of Gibson, Dunne and Crutcher and others, and who was a RISK MANAGER for the Shipping Companies, Federal Agencies, United States and other like the MOB...]

23
Also Present:
24
NICOLE LICHTENSTEIN

[DEPARTMENT OF HOMELAND SECURITY "ATTORNEY" who observed the entire proceedings and would do NOTHING to intervene in the ILLEGAL counter-proceedings........]

25 ERIC NORMAN SHINE

[CHARGED WITH "BEING DEPRESSED" and PROSECUTED FOR THIS UNLAWFUL AND CRUEL FABRICATED CHARGE only as he Mr. Shine BLOCKED by overwhelming forces from access to the COURTS]

2

1 TUESDAY, AUGUST 26, 2003, SAN DIEGO, CALIFORNIA

2 VOLUME I

3 10:50 A.M.

4 * * *

5

6 HON. PARLEN L. McKENNA: Come to order.

7 I call the case of United States Coast Guard,

8 complainant, versus Eric Norman Shine, respondent. The

9 docket number in this case is 03-0166. My name is

10 Parlen L. McKenna, and I am the judge assigned to hear

11 and decide this case.

12 The purpose of this proceeding this morning

13 was twofold. The respondent's counsel had filed a

14 motion on August 6th to hold a settlement conference.

15 In addition, am I correct, Mr. Forgie, that

16 during our telephonic prehearing conference that we had

17 held, which was not on the record, that you had also

18 requested that the Coast Guard present evidence which

19 would warrant your client having to have a psychiatric

20 examination?

21 MR. FORGIE: That was my understanding of

22 the -- I presume that the court was going to state the

23 purpose of the hearing today. And it was our desire,

24 and remains our contention, that the Coast Guard is

25 required to present a good cause for Mr. Shine, the

3

1 respondent, to submit to a mental exam. We asked for

2 the hearing to address all issues that might be

3 relevant to that determination as to good cause, or you

4 might call it a prima facie case.

5 And yes, that was my understanding as to what

6 we were going to do here as the other prong to the

7 twofold approach today.

8 HON. PARLEN L. McKENNA: All right. The Coast

9 Guard, in that prehearing conference, had disagreed

10 with that legal requirement, but had agreed to present

11 certain evidence in order to facilitate in that

12 examination; is that correct?

13 LT. HILL: That's correct, your Honor. The

14 regs just require, that if you determine that his

15 medical competency is at issue in this proceeding, then

16 you can order him to a psychological exam. And so we

17 agreed just to provide a few instances in a short

18 presentation to the court and to Mr. Forgie, aside from

19 medical records, even, of what caused the Coast Guard

20 to question his mental competency.

21 HON. PARLEN L. McKENNA: All right.

22 Mr. Forgie, do you want to add any items, summaries of

23 what occurred earlier in our off-the-record settlement

24 discussions?

25 MR. FORGIE: The reason I hesitate is that --

4

1 I think I was set back by the last comment. With

2 respect to -- and I know it's not responsive to the

3 court's question, but I would -- before I forget, an

4 element of the prima facie case or the good cause

5 showing, with respect to the psychological exam, also,

6 it was my understanding from our earlier telephonic

7 conferences that the Coast Guard was required to advise

8 us specifically as to how and when they acquired copies

9 of Mr. Shine's medical, slash, psychological records.

10 And I confirmed that in a letter to -- or a fax memo to

11 Lt. Hill last week. And he has responded orally,

12 representing certain things.

13 But I do think it should not be overlooked,

14 that given the court's previous ruling that Mr. Shine

15 was to submit to a psychological examination, and that

16 that order said that the court's finding in that

17 respect is based entirely on his -- the medical records

18 submitted, that I would reemphasize that we need to

19 hear from the Coast Guard a demonstration of where and

20 when all the medical records, psychological records

21 were obtained.

22 HON. PARLEN L. McKENNA: All right.

23 Mr. Forgie, let me correct you.

24 MR. FORGIE: Okay.

25 HON. PARLEN L. McKENNA: While on its face, my

5

1 last order requiring the independent medical

2 examination used those records as the predicate that my

3 previous orders for the independent medical examination

4 were not so limited, and that globally speaking, there

5 is multiple basis upon which I have ruled, and those

6 are outstanding, that required an independent medical

7 exam.

8 Do you dispute that that is a fact?

9 MR. FORGIE: We will clear that up today.

10 HON. PARLEN L. McKENNA: I'm saying that I did

11 that as to those orders that I issued. The one -- when

12 I issued the earlier order requiring the medical exam,

13 it was not so limited. It was based upon the records.

14 Then when I got noncompliance, and the Coast Guard made

15 a motion after your objection and noncompliance, then I

16 utilized those medical documents, the medical records,

17 as the basis. So there are multiple basis upon which I

18 have utilized to find that he should take a medical

19 exam.

20 Do you concur with that statement?

21 MR. FORGIE: In general terms, yes.

22 But I would like to clarify and give my

23 perspective on the chronology of those events briefly.

24 HON. PARLEN L. McKENNA: All right.

25 MR. FORGIE: I was not privy to the earliest

6

1 attempts by the Coast Guard to acquire Mr. Shine's

2 psychological records, medical records. Those records

3 appeared, unbeknownst to me, in certain filings by the

4 Coast Guard. I had no idea, and there was no

5 indication as to where they got those.

6 Subsequently, and please correct me if I'm

7 wrong, or the record will reflect, that a request was

8 made to have us turn those documents -- whatever

9 records we had over to them.

10 HON. PARLEN L. McKENNA: For purposes of

11 'them," that is the United States Coast Guard

12 investigations --

13 MR. FORGIE: Right.

14 HON. PARLEN L. McKENNA: -- office of -- the

15 marine safety office, San Francisco.

16 MR. FORGIE: Correct.

17 Now, at that point in -- we objected to that,

18 and the court ruled that we were to nevertheless turn

19 over the records, whatever records we had.

20 At that time, we had no records of any kind,

21 despite the fact that we'd made attempts to get them.

22 Subsequent to that time, an order was issued.

23 And the order was that we, the respondent, was

24 instructed -- ordered to turn over those records to the

25 court. That is my understanding as to what the order

7

1 said, that we were obligated to turn it over to the

2 court.

3 In subsequent telephone conversations, that

4 was clarified to state that we were to use our best

5 efforts to get those and turn them over to the court.

6 Then unbeknownst to me, the Coast Guard then used their

7 subpoena power.

8 HON. PARLEN L. McKENNA: Which is separate and

9 apart from my subpoena power.

10 MR. FORGIE: True.

11 They used their subpoena power and attached a

12 copy of that order and sent it off again to several or

13 all of the identified medical providers, implying, of

14 course, that the order meant -- instructed them to turn

15 it over to the Coast Guard.

16 I would suggest -- and indeed, they got some

17 of the records in response to that. I don't know which

18 ones. That's a bit cloaked in mystery at this stage.

19 But as I see it, that's an abuse of due

20 process, because they sent out a subpoena without

21 conforming to California law with respect to notifying

22 Mr. Shine that they were going to subpoena his records,

23 and then utilized a court order that did not, in fact,

24 say, "Honor the subpoena and turn the records over to

25 them." It said, "Forgie, you turn it over to the

8

1 court."

2 They then acquired certain records that way,

3 not bothering to comply with California law with

4 respect to the acquisition of those records or

5 acknowledging that there's a psychotherapist/patient

6 privilege at all.

7 Then the next thing chronologically that

8 happened was that I inquired further into where these

9 records came from, and Lt. Hill told me over the phone,

10 in response to the court's instruction, that he was --

11 the Coast Guard was to identify the source of their

12 documents, those particular records, that they had

13 gotten them in response to subpoenas that were sent to

14 attorneys, I believe, who had -- represented the

15 adverse parties in three of his lawsuits that were

16 filed in USCD, Central District of California. I was

17 not privy to that. I don't think that Mr. Shine had

18 notice of that effort. I understood that that was done

19 after the complaint was filed in this action.
20 Again, no notice was given, no opportunity to

21 object. Again, that was contrary to the Federal

22 privilege, which is now recognized in Jaffe versus

23 Redman, and is much more contemporaneous than the CFR

24 section which indicates that there is no

25 psychotherapist/patient privilege in Federal law. The

9

1 only justification for that CFR section saying there is

2 no psychotherapist/patient privilege is the fact that

3 at that time when that CFR thing was put on paper, that

4 there was no Federally recognized

5 psychotherapist/patient privilege. There is now, and

6 there has been throughout the duration of these

7 proceedings.

8 As a consequence, I would suggest that all of

9 the records that have been and are going to be

10 discussed either here or at some other time are

11 protected by a privilege, that they were not acquired

12 consistent with either California or Federal law and

13 they, as a consequence, should not form the basis of

14 any ruling by this court that he's to submit to a

15 mental exam.

16 That proof, in fairness and consistent with

17 due process, should, in fact, come from the express and

18 implied acts of Mr. Shine while he was working aboard a

19 boat. And there is nothing to this day that I've seen

20 that would -- of any act or conduct on his part that

21 can be characterized as mental incompetence at that

22 time.

23 Indeed, the court -- I should say that the --

24 whatever he did on the vessels should form the basis of

25 a conclusion by this court that he was mentally

10

1 incompetent. There is nothing. We have, and we've

2 submitted to the court, a memorandum -- sorry, a fax

3 from Lt. Tribolet, two faxes, actually, from the Coast

4 Guard dated May of 2002, wherein both Lt. Tribolet and

5 Lt. Benson down here in San Diego indicated, that as of

6 that point in time, they found nothing to indicate

7 misconduct on his part; and yet --

8 HON. PARLEN L. McKENNA: Misconduct or --

9 MR. FORGIE: Misconduct. That's what they

10 were looking for at the time. I think the term was

11 used broader in that sense.

12 They found nothing -- they didn't say they

13 found anything that would suggest incompetence. They

14 were simply saying, "We're just going to keep looking."

15 What has happened since that time, in

16 fairness, is that Mr. Shine has been subjected to a

17 grim reality. And that grim reality is he's been

18 blackballed by the fleet, blacklisted. He was

19 wrongfully discharged from his last vessel. His own

20 union concluded he was wrongfully discharged. There

21 are arbitration rulings, which we have submitted in

22 conjunction with our filings to date, which indicate

23 that this kind of conduct, when you don't get along

24 with people on a boat is not just --

25 HON. PARLEN L. McKENNA: I'll need to take

11

1 this.

2 Off the record.

3 (Interruption in the proceedings.)

4 HON. PARLEN L. McKENNA: Back on the record.

5 MR. FORGIE: The subpoenas that were issued,

6 it is our contention, were issued without legal support

7 and contrary to California law and Federal law, as

8 well. I do not think that the records that were

9 obtained in response to those can be utilized against

10 him. I do not think there has been any waiver of any

11 privilege here. If indeed -- I don't think that the

12 subpoena power that was used to get the records from

13 the other attorneys was proper. And underlying all

14 that, he has not waived a privilege by having those

15 records produced in relation to that other litigation.

16 There's been no showing of such a waiver.

17 And I really feel quite strongly about this.

18 I insist, on his behalf, that if those kinds of

19 records, volatile and intrusive as they are, with the

20 strict California requirements regarding notice and

21 protection of those, coupled with what the U.S. Supreme

22 Court has demonstrated in their Jaffe ruling, coupled

23 with what we've cited in here as an UCMJ executive

24 order, indicating there is a psychotherapist/patient

25 privilege in military proceedings, that that all should

12

1 be recognized and that the privilege should be -- is

2 being circuited here and should be honored with respect

3 to the records which are going to be used against him.

4 Now, I further would cite the court to -- I

5 don't have the Federal law on this, but the California

6 case is Titmas versus Superior Court, T-i-t-m-a-s.

7 It's a 2001 case, 87 Cal. Ap. Court 738, wherein it

8 says "Courts cannot summarily decide attorney/client

9 privilege disputes; i.e., whether the matter is within

10 the scope of the privilege, whether an exception exists

11 or whether the privilege has been waived."

12 The case goes on to state "On motions raising

13 a prima facie claim of psychotherapist/patient

14 privilege, the judge must order a full hearing with

15 argument before ordering client confidences disclosed

16 to the other side."

17 What I'm asking for here -- and I do think

18 it's important. This is not just a pro forma argument.

19 Mr. Shine wants to find out how people got the records

20 regarding his psychological examinations. He wants an

21 opportunity to question the people, the authors of

22 those reports, to determine whether or not they had any

23 particular bias.

24 For instance, Dr. Kulik was hired by the other

25 side, an adverse party, to say things that were

13

1 detrimental to him. That's just as a for-instance. I

2 don't know about the others. I don't have any

3 opportunity -- none of those people, it's my

4 understanding, are going to be here. And I have not,

5 to date, seen any declaration or any evidence from the

6 Coast Guard as to how these things were acquired so

7 that I can respond in a formal legal fashion in

8 objecting to the means and methods that were utilized

9 in getting those records, but I do think they're

10 important. And I am very cautious about having the

11 court draw conclusions utilizing, to any degree, those

12 records.

13 Off the records for a moment, I know the

14 court --

15 HON. PARLEN L. McKENNA: Did you say "off the

16 record"?

17 MR. FORGIE: "Off those records."

18 HON. PARLEN L. McKENNA: All right.

19 MR. FORGIE: I dare not ever go off the record

20 again. We'll tell you later.

21 The letters that were written by Mr. Shine --

22 let me back up. While I'm just going on here --

23 HON. PARLEN L. McKENNA: You're going too

24 broad.

25 MR. FORGIE: You may be right, and I'll

14

1 present the rest of this argument at the appropriate

2 time.

3 HON. PARLEN L. McKENNA: Yes. Let me just --

4 first of all, do you remember what I asked you when you

5 started?

6 MR. FORGIE: Yes. It was something about the

7 settlement conference. And no --
8 HON. PARLEN L. McKENNA: Did you have a

9 summary of -- basically --

10 MR. FORGIE: Okay. I'll give my own pitch on

11 the thing, and I'll clarify for the record.

12 HON. PARLEN L. McKENNA: I don't want your

13 pitch. What I want is the fact, that during the --

14 after we started the settlement discussions, that

15 Mr. Shine interjected that he objected to any

16 discussions between his counsel, the Coast Guard and

17 the judge without it being on the record. And he

18 further indicated that he wanted notice and opportunity

19 to participate in any such discussions.

20 Is that a correct recitation of some of your

21 statements, Mr. Shine?

22 ERIC SHINE: With one caveat as to

23 calendar -- notice and calendaring so that we have --

24 whether it's several weeks or whatever to file motions,

25 prepare a defense as to the issue to be addressed at an

15

1 individual settlement conference or hearing or

2 whatever, and that I may be there and participate,

3 because there's been several that I've -- may have been

4 made aware of, where my attorney has called to the

5 lieutenant or others; and all of a sudden, it's become

6 an impromptu hearing, as if it was almost an ex parte

7 motion, but --

8 HON. PARLEN L. McKENNA: An impromptu

9 conference.

10 ERIC SHINE: Well, but again, impromptu

11 conference with the two parties there in the court is

12 one that I should be allowed to participate in so that

13 I may effectively add to and participate in my own

14 defense.

15 Because when I hear the Coast Guard say one

16 thing -- you may hear something, your Honor, without a

17 lot of the information and experience that I have with

18 dealing with several individuals within the Coast

19 Guard, and I need to get evidence before you to say,

20 "No, no, no. This is what's going on, your Honor."

21 HON. PARLEN L. McKENNA: All right.

22 Mr. Shine, I got your message. And I think that you

23 have the right to have these proceedings henceforth

24 conducted in that manner.

25 Mr. Forgie, is it not a fact, that prior to

16

1 this morning, that that was the first time that this

2 court had been made aware of Mr. Shine's desires

3 relative to that issue?

4 MR. FORGIE: True.

5 HON. PARLEN L. McKENNA: And is it not also a

6 fact that your motion for a settlement conference made

7 no mention of a settlement judge -- separate and apart

8 from myself, it made no mention of alternate dispute

9 resolution being utilized and made no mention of the

10 fact that that was to be on the record?

11 MR. FORGIE: That's correct.

12 HON. PARLEN L. McKENNA: All right.

13 ERIC SHINE: Your Honor?
14 HON. PARLEN L. McKENNA: No, not right now.

15 While I concur that Mr. Shine should have the

16 right to participate in any future conferences, that

17 participation, with minor and infrequent occasions,

18 will be filtered through Mr. Forgie.

19 All right. I have been handed this morning a

20 motion to order the parties into alternative dispute

21 resolution. I've read the motion.

22 Does the Coast Guard have a response to that?

23 LT. HILL: We object.

24 HON. PARLEN L. McKENNA: Any other comments?

25 LT. HILL: No, your Honor.

17

1 HON. PARLEN L. McKENNA: All right.

2 LT. HILL: It's short notice. We didn't know

3 anything about it prior to this morning.

4 HON. PARLEN L. McKENNA: All right. Let the

5 record reflect, that in considering the respondent's

6 motion, I obtained copies of the addendum to the APA

7 concerning alternate dispute resolution, parentheses,

8 (ADR), close parentheses, and note, that at 5 USC

9 Section 572 (a) and (b), both parties have to agree in

10 order for there to be alternative dispute resolution.

11 And in Subsection B, it specifically delineates that

12 those instances where it is not appropriate for ADR --

13 since ADR is a mechanism whereby the parties might have

14 an opportunity to resolve a matter short of litigation

15 and hearing, it is viewed favorably; and indeed, I view

16 it favorably and like to employ it where such an avenue

17 might appear to be fruitful.

18 In this case, after hearing the positions of

19 the parties, it's clear to me, that separate and apart

20 from the fact that the Coast Guard is opposed to either

21 the assignment of a settlement judge or the use of ADR,

22 that it would not be fruitful to attempt that avenue --

23 ERIC SHINE: Your Honor?

24 HON. PARLEN L. McKENNA: -- of resolution.

25 Mr. Shine --

18

1 ERIC SHINE: The Coast Guard had mentioned

2 earlier that they would --

3 HON. PARLEN L. McKENNA: You may make a note

4 to your counsel and filter it.

5 ERIC SHINE: Sorry, your Honor.

6 HON. PARLEN L. McKENNA: Now, one other thing

7 that I need for the record is, under 33 CFR Section

8 20.202 (e), where the powers of the judge specifically

9 state that I hold hearings or settlement conferences,

10 Mr. Forgie, prior to this morning's settlement

11 conference, was there ever any notice to this court

12 that any settlement conferences between the parties or

13 any conferences, if you will, between the parties were

14 to be on the record?

15 MR. FORGIE: I'm sorry. Could you state that

16 again?

17 HON. PARLEN L. McKENNA: What I'm saying is,

18 when we had those settlement conferences previously

19 between the parties, was there any objections ever

20 voiced by you that you wanted them on the record?

21 MR. FORGIE: No.

22 HON. PARLEN L. McKENNA: And is it --

23 MR. FORGIE: I don't believe that we actually

24 ever had any settlement conferences.

25 HON. PARLEN L. McKENNA: Or conferences,

19

1 whatever we had.

2 MR. FORGIE: Right. Okay.

3 HON. PARLEN L. McKENNA: Any telephonic

4 conferences between the parties.

5 MR. FORGIE: No. I think I said that already.

6 No, I never brought that up.

7 HON. PARLEN L. McKENNA: All right. And has

8 the respondent ever notified this court that he wanted

9 a cessation in any discussions between the parties

10 without him being present prior to this morning?

11 MR. FORGIE: Without disclosing any

12 attorney/client privilege, indeed, he has expressed

13 that concern to me, to me.

14 HON. PARLEN L. McKENNA: I'm talking about is

15 to this court --

16 MR. FORGIE: No.

17 HON. PARLEN L. McKENNA: -- prior to this

18 morning.

19 MR. FORGIE: He's expressed -- just to

20 clarify, he's expressed that to me, and in a variety of

21 ways. And I have tried to explain to him that I do

22 not -- have not perceived there have been such

23 conferences where anything particularly germane was

24 discussed in orders, certainly. It is my impression

25 the majority of the things were reduced to an actual

20

1 order and were properly reduced to writing, put it that

2 way.

3 But I've never conveyed his -- before today,
4 he's never conveyed that request to you.

5 HON. PARLEN L. McKENNA: All right. And that

6 the matters that were discussed in conference between

7 the parties, that anything of significance or relevance

8 and materiality was subsequently either reduced -- was

9 reduced to an order?

10 ERIC SHINE: Don't respond. I'm asking you

11 not to respond.

12 Your Honor, I'm asking, under the LMRDA, the

13 right to speak and be heard, where it says not to be

14 stifled under my free speech rights, any tribunal,

15 administrative proceeding or Federal Court, and I'm

16 asking so that I may respond and set the record

17 straight, because it's apparent to me that you're

18 trying to set the record where I've been saying all

19 along due process. It says in the APA, and you're duty

20 bound to support and uphold --

21 HON. PARLEN L. McKENNA: You're going --

22 you're going to wait a second. I'm going to regulate

23 the course of this hearing, Mr. Shine, not you.

24 ERIC SHINE: Well, I feel my rights are being

25 violated.

21

1 HON. PARLEN L. McKENNA: It's on the record.

2 ERIC SHINE: That's all I want to do is make a

3 matter of record.

4 HON. PARLEN L. McKENNA: All you need to do is

5 say, "Your Honor, I object."

6 ERIC SHINE: And I do.

7 HON. PARLEN L. McKENNA: All right.

8 ERIC SHINE: I object, your Honor.

9 HON. PARLEN L. McKENNA: It's on the record.

10 And periodically, I'll allow you the opportunity to

11 backfill.

12 ERIC SHINE: But again, you're violating even

13 attorney/client privilege. You're asking my attorney

14 to say something that is not --

15 HON. PARLEN L. McKENNA: I'm asking for a

16 factual statement to make a record as to what occurred

17 and what didn't occur, because you objected to having

18 the parties; i.e.; your counsel, the Coast Guard and

19 myself, have a discussion. And I want it on the record

20 that there was no conveyance or no objection at any

21 time prior to this morning, and --

22 ERIC SHINE: And I'm saying there is, your

23 Honor. I'm trying -- rather than having the record --

24 have my attorney set the record for you, I'm saying,

25 that from the very beginning, I have been saying due

22

1 process, due process, due process, which is outlined in

2 the APA that everything will be, you know, judicially

3 noticed and carries judicial weight. That's why

4 everything is supposed to be on the record, anything

5 between you, the Coast Guard and myself or my

6 representation.

7 And I've been trying to make this very clear

8 so that people follow the APA so that my rights to due

9 process, both 1st and 14th amendments, are not

10 violated.

11 HON. PARLEN L. McKENNA: I'm going to give you

12 an opportunity.

13 Mr. Forgie, have you conveyed that to this

14 court that there was any objection?

15 MR. FORGIE: Not before today.

16 HON. PARLEN L. McKENNA: All right. Now,

17 Mr. Shine, fully, clearly, and in as few words as you

18 can, but by fully stating your position --

19 ERIC SHINE: I'm asking for a de novo trial,

20 mistrial, because these matters have not been held on

21 the record. Even Mr. Hill's --

22 HON. PARLEN L. McKENNA: What matters have not

23 been held on the record?

24 ERIC SHINE: Meetings between your Honor, the

25 Coast Guard and my counsel that I have the right to be

23

1 there and present on that are supposed to be judicially

2 noticed and calendared so that I may participate so

3 that there's not confusion as to what I'm asking per

4 ADR, which -- I'm not a lawyer. I'm sorry. I'm not.

5 I asked for a settlement conference. ADR is a

6 type of settlement conference, but I was very specific.

7 And I said, where it's a different judge, impartial.

8 It even outlines it in the APA, which it

9 affords --

10 HON. PARLEN L. McKENNA: I understand.
11 ERIC SHINE: Retired judge.

12 HON. PARLEN L. McKENNA: If I don't have

13 notice of that, sir --

14 ERIC SHINE: But if I don't have notice myself

15 of you getting together on hearings -- there's been

16 three or four, that I know of, that the -- my attorney

17 has called on, either obtaining transcripts or this or

18 that matter or inquiring of the court or the Coast

19 Guard, which, all of a sudden, becomes an impromptu

20 hearing, and an order is issued, that I'm -- I don't

21 participate in, and I'm like, "Whoa, where did that

22 come from?"

23 And I object to that, and I'm making it a

24 matter of record as to due process, because as an

25 evidentiary --

24

1 HON. PARLEN L. McKENNA: That's all I'm

2 conveying on the record is that I was not informed of

3 your objection.

4 ERIC SHINE: But again, it doesn't go to my

5 objection or being informed. It goes to your duty in

6 that office to know the APA, that you're not supposed

7 to be doing that.

8 And it's my strong position --

9 HON. PARLEN L. McKENNA: Well, sir, I disagree

10 with you strongly.

11 ERIC SHINE: Right. And I'm making it a

12 matter of record so that it's very clear, that at some
13 point, any time that there is a hearing, it's supposed

14 to be judicially noticed --

15 HON. PARLEN L. McKENNA: It is not -- you're

16 using the wrong term. It is not a hearing. It is a

17 conference.

18 ERIC SHINE: Pretrial conference, prehearing

19 conference, whatever name you want to place on it.

20 HON. PARLEN L. McKENNA: That's the --

21 ERIC SHINE: Quote, unquote, "a meeting of the
22 two parties and the court and the judge," just like

23 under FRCP or anything else is supposed to be

24 judicially noticed, because it carries judicial weight.

25 You're issuing orders --

25

1 HON. PARLEN L. McKENNA: When you say "FRCP,"

2 would you give out the initials?

3 MR. FORGIE: Federal Rules -- well, FRCP,

4 Federal Rules of Civil Procedure, whatever, which this

5 court is duty bound by. If there's nothing that is on

6 point --

7 HON. PARLEN L. McKENNA: I'm afraid that

8 that's an incorrect statement, also.

9 ERIC SHINE: Well, let me finish myself, your

10 Honor.

11 If there's nothing on point and there is under

12 the APA, then it's to look at other courts,

13 jurisdictions and venues for something that is.

14 They're bringing in matters, points and authorities

15 from NLRB. I don't know if there's F.A.A., NTSB, other

16 authorities, which is allowed and afforded, if there's

17 nothing on point as to the specific issue as to due

18 process -- it carries judicial weight. It's supposed

19 to be judicially noticed and calendared. And that's

20 been one of my objections all along, that I'm being

21 steamrolled, because they don't want to address any

22 issues of acts of incompetence, because I haven't

23 committed any.

24 Even now in this court, I'm showing that I've

25 done the homework. I'm protecting myself. I've

26

1 learned the APA. You know, granted, I don't have it in

2 front of me; but there's even a section in there that

3 goes to arbitration, and I'm asking the court, whether

4 it's through mistrial or de novo trial, to start the

5 proceedings over with a different judge, where it's

6 judicial notice.

7 HON. PARLEN L. McKENNA: So you're moving now

8 that I recuse myself?

9 ERIC SHINE: Yes, your Honor.

10 HON. PARLEN L. McKENNA. All right. Your

11 motion is denied.

12 ERIC SHINE: Fine. Beyond that, I'm

13 asking -- under alternative dispute resolutions, it

14 goes to the issue of arbitration and arbitration

15 agreements. And it's very specific, and it states that

16 that will not be ignored by the court. This is under

17 the shipping articles. This is something that the

18 Coast Guard has authority and jurisdiction over, which

19 you can rule on. It's under the 1984 Ocean Shipping

20 Reform Act, if there's an arbitration agreement in

21 place. This is not just normal collective bargaining.

22 There's federal funds involved, et cetera, et cetera.

23 If it says, in the collective bargaining agreement,

24 that you go to the license personnel board, which is

25 created under the Railway -- RLA, that's supposed to be

27

1 it. Whether it's a voluntary board created under the

2 RLA or not, it's in the shipping articles which the

3 Coast Guard has jurisdiction and authority over. I'm

4 asking you to stay the matters and have them

5 adjudicated in the LPB. If there's a problem with the

6 license --

7 HON. PARLEN L. McKENNA: Sir, you are hereby

8 directed through your counsel to file the appropriate

9 motion for which you're requesting.

10 ERIC SHINE: I'm asking -- that's an oral

11 motion that I'm making now, and I will follow it up

12 with a formal written motion. But this is notification

13 to the Coast Guard of that and the court, and I will

14 make sure you get that tomorrow, your Honor.

15 HON. PARLEN L. McKENNA: Well, you'll get it

16 to me when your attorney --

17 MR. FORGIE: I appreciate the court's comment.

18 HON. PARLEN L. McKENNA: Okay.

19 MR. FORGIE: My hair will get a lot grayer.

20 HON. PARLEN L. McKENNA: And thinner.

21 ERIC SHINE: But there's other issues as to

22 jurisdiction and all kinds of other questions that have
23 been raised, that before we even get to an issue of

24 medical or mental competency --

25 HON. PARLEN L. McKENNA: No. I'm going to

28

1 control how this hearing is handled.

2 Now, pursuant to the request of your counsel,

3 we are here today, and the Coast Guard has the

4 opportunity to present their good cause showing as to

5 why an independent medical exam should be done.

6 Now, this does not obviate the fact that there

7 are at least two court orders outstanding that you have

8 that medical exam, which you have not complied with.

9 However, I am going to allow the Coast Guard the

10 opportunity to, one, without using the medical, and

11 two, with using the medical. And then I will make a

12 determination as to whether the good cause showing

13 exists. And we will go from there.

14 MR. FORGIE: Just a point of clarification.

15 And it was addressed -- this was a comment that was

16 addressed off the record earlier.

17 Yes, there were two orders relating to this

18 examination. But there were other concerns that were

19 raised, including the Freedom of Information Act

20 possibilities with respect to what becomes of these

21 records if, indeed, the records are made -- put into

22 evidence, how and if those can be protected from public

23 dissemination.

24 HON. PARLEN L. McKENNA: Yes, they can.

25 MR. FORGIE: Yes.

29

1 And secondly, it was my understanding that the

2 court rescinded the two orders, and pending a further

3 determination as to where the medical records came from

4 and a showing of good cause, that those orders were

5 going to be put, if you will -- call it rescinding,

6 call it putting it on the back burner, they were not

7 literally going to be applicable to Mr. Shine, pending

8 some showing today as to good cause. That was my

9 understanding.

10 HON. PARLEN L. McKENNA: Well --

11 MR. FORGIE: I have never --

12 ERIC SHINE: And that's what was communicated

13 to me.

14 MR. FORGIE: I have never advised Mr. Shine,

15 based on that -- our earlier discussion, that he needed

16 to comply with that order, because these other issues

17 came up.

18 ERIC SHINE: It's been communicated to myself

19 that, indeed, these two orders have been rescinded.

20 MR. FORGIE: It's not to say that they were

21 completely rejected and the court changed their mind.

22 HON. PARLEN L. McKENNA: Just a minute.

23 We were dealing with the issue of the Sharp

24 Hospital medicals. I have not rescinded either of my

25 two orders. It was like I issued an order saying, "Get

30

1 a medical exam," and one was not forthcoming. I issued

2 another order, based on motions requesting an

3 independent medical exam, and I issued another order.

4 And then there were numerous pleadings filed as to the

5 inappropriateness, slash, illegality, slash, protected

6 privilege. And so what I did was the Coast Guard

7 volunteered in our conference call to make a

8 presentation.

9 And so therefore, I said, "Fine." But I have

10 not stayed my previous orders.

11 ERIC SHINE: And keeping in that -- your

12 Honor, may I speak, please?

13 HON. PARLEN L. McKENNA: Yes, you may.

14 ERIC SHINE: In keeping with that, I would

15 request judicial review on what is a matter of record

16 before the U.S. District Court, who is the appellate

17 court for the administrative proceedings and for your

18 office, as far as I understand it. And I ask that now

19 and these proceedings be stayed until they rule on

20 Richman v. Jaffe, UCMJ, the executive order issued by

21 the president. 50 states have legislated the therapist

22 privilege, et cetera, et cetera, that right now you're

23 going to issue an order or consider motions or

24 information in regards to those rulings, and that

25 you're saying the orders are outstanding.

31

1 I'm asking that these matters today be stayed

2 so that we can file an appeal, an interlocutory --

3 HON. PARLEN L. McKENNA: You want an

4 interlocutory appeal, and that's what you're

5 moving for, right?

6 ERIC SHINE: Yes, your Honor, with the U.S.

7 District Court to review your orders that you are

8 leaving outstanding in regards to Richman v. Jaffe, the

9 Universal Code of Military Justice --

10 HON. PARLEN L. McKENNA: Uniform --

11 ERIC SHINE: Sorry. I got corrected on it the

12 other day. Sometimes there's too many things spinning

13 around my head.

14 And the fact that the 50 states have all

15 legislated --
16 HON. PARLEN L. McKENNA: You already stated

17 that once.

18 ERIC SHINE: But again --

19 HON. PARLEN L. McKENNA: Your motion is

20 denied, that the right of interlocutory appeal is

21 solely within the province of the trial judge, and so I

22 am denying that.

23 ERIC SHINE: Right. And then I move to the

24 higher court.

25 HON. PARLEN L. McKENNA: You have no right of

32

1 appeal on that issue. You have to wait until the

2 proceeding is over, and then you appeal.

3 ERIC SHINE: I disagree, and that's my

4 position. But again, I'm not a lawyer or a judge;

5 so --

6 HON. PARLEN L. McKENNA: I understand, sir.

7 And I'm trying to give you every opportunity to --

8 ERIC SHINE: Well, there's injunctive relief

9 in 2114 46 USC that affords, especially in

10 whistle-blower type situations like this --

11 HON. PARLEN L. McKENNA: Then you need --

12 ERIC SHINE: -- injunctive relief.

13 HON. PARLEN L. McKENNA: You need to afford

14 yourself of that avenue.

15 ERIC SHINE: Yes, your Honor.

16 HON. PARLEN L. McKENNA: All right. Do you

17 want to proceed now, or --

18 LT. HILL: Yes, I can proceed. I'm just going

19 to talk very quickly. I do want to mention one thing

20 that I discovered along the way.

21 I found a release signed by Mr. Shine to

22 release his medical records to ASM in support of

23 his --

24 HON. PARLEN L. McKENNA: What is ASM?

25 LT. HILL: American Ships Management -- I

33

1 forget --

2 ERIC SHINE: It's one of the employers who

3 have --

4 LT. HILL: American Ship Management.

5 ERIC SHINE: There's an open U.S. District

6 Court case pending right now, that any ruling you have,

7 your Honor, will affect.
8 LT. HILL: Well, that's totally false.

9 ERIC SHINE: That's your opinion.

10 LT. HILL: Once this court rules upon --

11 HON. PARLEN L. McKENNA: One second.

12 ERIC SHINE: Object, your Honor. I'm sorry.

13 HON. PARLEN L. McKENNA: Until further notice,

14 you are to filter your comments through that

15 white-haired gentleman that's sitting next to you.

16 LT. HILL: I just want to clarify the medical

17 records for two minutes, and then -- I'm not going to

18 mention anything specifically from the medical records.

19 HON. PARLEN L. McKENNA: We're going to go off

20 the record for one minute.

21 (A two-minute recess was taken.)

22 HON. PARLEN L. McKENNA: On the record.

23 LT. HILL: On the record, I just want to

24 mention I'm not going to repeat anything from the

25 medical records, per our voluntary agreement not to at

34

1 this morning's proceedings.

2 HON. PARLEN L. McKENNA: No, bifurcated.

3 There's going to be part of it without and part of it

4 with.

5 LT. HILL: Oh, I didn't know that, but --

6 HON. PARLEN L. McKENNA: I want to hear your

7 justification, just -- since that would memorialize it

8 for the record, because the other matters were

9 contained in --

10 LT. HILL: Okay. I'll just have to go from

11 memory from the medical records.

12 ERIC SHINE: Your Honor, object, quick.

13 HON. PARLEN L. McKENNA: Your objection is

14 duly noted.

15 ERIC SHINE: But may I clarify what the

16 objection is?

17 HON. PARLEN L. McKENNA: Yes, you may.

18 ERIC SHINE: I would like a little bit of

19 clarity from the court as to -- because, again, I

20 wasn't made party to the conference that set up this

21 order and this hearing. I have no idea what's going

22 on. Earlier, we were to have a settlement conference,

23 which I thought was ADR, which was to be ordered

24 et cetera, et cetera.

25 Thereafter, from what I've been told by

35

1 Mr. Forgie, is that there was to be some kind of a

2 conference on the issue of medical, whatever that is,

3 medical competence, whatever, which I don't understand

4 what September 23rd is, as opposed to today; because

5 it's my understanding that September 23rd should be the

6 prima facie showing, first and foremost, that there was

7 an act of incompetence, what it was.

8 Then they can go into saying that, "Yes, not

9 only was he incompetent --" because my -- I have not

10 brought my medical state of mind at issue. The Coast

11 Guard has. But they've not gone through the process,

12 due process, showing what has gotten them there. First

13 and foremost --

14 HON. PARLEN L. McKENNA: That was the

15 purpose of -- Mr. Forgie had asked for an accommodation

16 by the Coast Guard. My orders are escant. That means

17 they're outstanding, and you're in violation of them.

18 Lieutenant, all I want you to do is -- you can

19 make a short summary as is justification, for the

20 benefit of the respondent, who was not privy to all of

21 the previous conversations in the conference calls, as

22 to why you think there is a justification.

23 And prior to that, Mr. Forgie, what is the

24 legal requirement that you are saying that the

25 government is required to make a good faith or prima

36

1 facie case that that has to be done?

2 ERIC SHINE: As --

3 MR. FORGIE: I believe it was subject to a

4 part of a motion that we'd made earlier, that there
5 is -- I'd to have find it, but it's --

6 HON. PARLEN L. McKENNA: No. I mean, is there

7 a specific Federal case that says that they have to

8 make the prima facie showing or that that prima facie

9 showing has to be made in court at a hearing, as

10 opposed to in writing?

11 LT. HILL: One thing. I just remember -- if I

12 can interject.

13 They did make a motion as to that effect.

14 They said it has to be a hearing, and they mentioned

15 one case. I believe it was Matson. I refuted that in

16 my reply, and the judge ruled that it was not required

17 to be done that way.

18 HON. PARLEN L. McKENNA: Correct. That's my

19 understanding.

20 ERIC SHINE: But it --

21 HON. PARLEN L. McKENNA: No.

22 ERIC SHINE: I object, your Honor, again,

23 under LMRDA.

24 HON. PARLEN L. McKENNA: You can object. I

25 told you I want you to direct --

37

1 ERIC SHINE: I'm objecting --

2 HON. PARLEN L. McKENNA: -- any comments

3 through your counsel.

4 ERIC SHINE: But you're denying my ability to

5 represent and participate effectively in my own defense

6 by stifling me, and it's --

7 HON. PARLEN L. McKENNA: That's -- that is

8 your opinion.

9 ERIC SHINE: It's illegal to do that under the

10 LMRDA, and I'm asking to be heard and so it's a matter

11 of record.

12 HON. PARLEN L. McKENNA: It's a matter of

13 record.

14 ERIC SHINE: Because there are

15 misrepresentations --

16 HON. PARLEN L. McKENNA: Mr. Shine, it is a

17 continuing objection; so I do not want to hear from you

18 again unless I give you permission.

19 LT. HILL: Okay. Back to the Coast Guard

20 recollection. Just for the one minute, I'm going to

21 talk about the medical records, not mention any

22 specifics.

23 We refuted -- we replied to their claim of

24 Jaffe v. Redman, because the Jaffe v. Redman applies if

25 there's a physician/patient privilege. We admit that

38

1 there is such a thing, and -- but that position can be

2 waived.

3 And clearly --

4 HON. PARLEN L. McKENNA: Well, wait a second.

5 LT. HILL: I mean, that privilege can be

6 waived.

7 HON. PARLEN L. McKENNA: You're saying that

8 that privilege might exist in the law; but under the

9 Coast Guard Code of Federal Regulations, there is no

10 such thing as a patient/physician privilege.

11 LT. HILL: Correct. There are two --

12 HON. PARLEN L. McKENNA: How can there be one?

13 LT. HILL: Well, the Supreme Court has -- I

14 mean, I will partially agree with counsel here that the

15 Supreme Court has, since the regs were created, said

16 there is a physician/patient privilege -- I mean a

17 psychotherapist/patient privilege.

18 ERIC SHINE: Object, your Honor.

19 LT. HILL: That's what the Supreme Court said.

20 But we are getting off the track here.

21 I just want to say, even if there is such a

22 privilege, which the court points out there may not be

23 at all, because of the CFR section saying there is no

24 physician/patient privilege in these proceedings, even

25 were the Jaffe v. Redman privilege to apply, he has

39

1 clearly waived it to these medical records, because he

2 produced all of these medical records that we've cited

3 to ASM, to MEBA and to Matson, in pursuit of his failed

4 claims against those three companies.

5 ERIC SHINE: Object, your Honor. They're not

6 failed claims. They're still active U.S. District

7 Court cases that they've imposed themselves upon; and

8 even the Federal judge, Judge Matts -- I'm sorry, your

9 Honor. I must object and make it a matter of record so

10 it's clear to the court that Judge Matts has expressed

11 his continuing authority and jurisdiction over the

12 matters, period.

13 So at some point, again, the Coast Guard has

14 even stated in some of their motions that his losing

15 arguments in the U.S. District Court cases -- we have

16 an e-mail from the lieutenant trying to state or use

17 admiralty or tort as precedence. It's not precedence.

18 It's a criminal act or violation of law, rule or

19 regulation that goes to an act of incompetence that

20 allows them to even get at the medical records.

21 LT. HILL: Now, the next thing I was going to

22 say is that I have -- we have several -- we have at

23 least one release signed by him giving these records to

24 the opposing parties in support of his emotional

25 distress claims. And this is a voluntary disclosure to

40

1 a third party by Mr. Shine of his psychological

2 records.

3 ERIC SHINE: Within a corpora cy, and it's

4 still valid, your Honor.

5 LT. HILL: And I just cite one case here in

6 the motion that you'll be receiving today. In Shafe

7 v. Bonne, a 2000 Federal Court case, it says that "If

8 the holder of the privilege voluntarily discloses

9 contents of any part of the matter of communication,

10 once confidentiality is destroyed through a voluntary

11 disclosure, no subsequent claim of privilege can

12 restore it."

13 So by waiving -- now, we're not saying he

14 doesn't have a right of privacy in these records. He

15 clearly does. But that's a lot different than a

16 privilege of not admittance into evidence. And that's

17 why we're saying if "Foyas" were to become an issue,

18 these records would be protected under the Foyas
19 provisions, which the Federal government does not

20 disclose evidence that would -- I think the language is

21 "be an unreasonable invasion of personal privacy."

22 And clearly --

23 ERIC SHINE: Harassment.

24 LT. HILL: -- these records would be

25 considered by the Coast Guard in any subsequent

41

1 disclosure to be, you know, privacy information. But
2 it's clear he has waived the psychotherapist privilege.

3 If it exists at all, he's waived it forever relating to

4 these records.

5 But we are not saying that he doesn't have a

6 right of privacy in them. And so are we not going to

7 put these out in the newspaper. We would not post them

8 up on the wall. We're saying he has a right of privacy

9 to those records, but he has waived the

10 psychotherapist/patient privilege.

11 Now, so the point of what we're here for

12 today, I'm just going to briefly state to the court a

13 lot of the things that caused the Coast Guard to become

14 concerned about his mental condition, which was the

15 backbone of all of these proceedings.

16 Going right to public record information, in

17 response to an interrogatory in the case against MEBA,

18 Mr. Shine stated, that in February 2000, which is one

19 month before -- or just after leaving the JACKSON, he

20 said he was diagnosed as suffering from major

21 depression, "Dr. Shafer diagnosed me as suffering from

22 severe depression and stated I should not go back to

23 union school or be on a ship at all. It's too

24 dangerous for me in my condition."

25 That is a statement he made in the

42

1 interrogatories in that case against MEBA, which is

2 part of the public record.

3 I'm just going to quickly read down my notes

4 here.

5 Let's see. In October -- let's see --

6 HON. PARLEN L. McKENNA: Counsel, there's no

7 reason to quickly do anything. We're going to take

8 this in an orderly fashion.

9 LT. HILL: Okay.

10 HON. PARLEN L. McKENNA: And you may sit down.

11 You may calm down. And we will proceed.

12 LT. HILL: All right. I'll just go ahead and

13 read through my notes.

14 Okay. In an e-mail to various persons on

15 December 27th of 2002, Shine said, "I'm at my wit's end

16 and close to losing everything I have fought for. I

17 cannot believe I have held out this long, but I'm

18 seriously questioning how much more loss any one

19 individual can absorb without some sort of serious

20 uncontrollable catastrophe." And he stated that he was

21 desperate, could hold on no longer. He stated that the

22 union had called the F.B.I. and reported he was a

23 physical threat.

24 ERIC SHINE: Come on.

25 LT. HILL: And that's going to be a continuing

43

1 theme that we'll see, that many people that he

2 encountered consider him a physical threat.

3 ERIC SHINE: Your Honor, object, because

4 there's also a formal complaint that was filed with the

5 F.B.I. prior to that.

6 HON. PARLEN L. McKENNA: Duly noted.

7 LT. HILL: Okay. Mr. Shine's attorney

8 mentioned Dr. Kulik. The only reason I'm going to

9 bring up Dr. Kulik is because, in his case against ASM,

10 that was the person that gave him the psych -- he

11 participated in a psychiatric exam then in support of

12 his claim for emotional and mental distress against

13 ASM; so he went to a third party, Dr. Kulik, same

14 situation that we're asking to be done in this case.

15 And because that's -- like I said, this is not

16 a physician/patient privilege simply because he went to

17 her as a -- so we're not bringing in her medical

18 records. We're just bringing in a letter that she

19 wrote to the attorney for ASM, stating that he's

20 suffering very moderate to severe emotional disability,

21 paranoid trends, emotionally explosive personality and

22 some side of paranoid state.

23 I have here an e-mail sent by Mr. Shine to Lt.

24 Tribolet and several others. This one is dated

25 May 7, 2003; so just four months ago.

44

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