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Due to the size of the TRANSCRIPTS it had to be broken down into several PARTS to get it to post.

Here is PART B of VOLUME I PAGE 168 - 202

Full Text :
[continued from page 167 of VOLUME I - DAY I]

1 ERIC SHINE: Your Honor --

2 HON. PARLEN L. McKENNA: It's over.

3 ERIC SHINE: -- with all due respect --

4 HON. PARLEN L. McKENNA: It is over.

5 ERIC SHINE: Your Honor, with all due respect,

6 please let me be heard. Please let me be heard.

7 HON. PARLEN L. McKENNA: I said it's over.
8 ERIC SHINE: Please.

9 HON. PARLEN L. McKENNA: No; no.

10 ERIC SHINE: Well, because you're forcing

11 me --

12 HON. PARLEN L. McKENNA: Mr. Shine --

13 ERIC SHINE: I object, your Honor. You're

14 forcing me --

15 HON. PARLEN L. McKENNA: You can object, and

16 it's on the record. It's over. That discussion is

17 over.

18 ERIC SHINE: You're asking me to correct your

19 orders.

20 HON. PARLEN L. McKENNA: All right.

21 Mr. Forgie, I can't make this situation right for your

22 client. You know, I've tried my best.

23 MR. FORGIE: Your Honor, I would ask a couple

24 things.

25 First of all, just a statement of the basis on

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1 which the court is making the finding that he should

2 submit to the psychological exam, and then a reasonable

3 time to comply with any order that is issued.

4 HON. PARLEN L. McKENNA: I'm not -- I'm not

5 going to do that, Counsel, if I don't get an agreement

6 that he is going to attend.

7 ERIC SHINE: Ask him -- he's waiving my

8 attorney/client privileges so that they can get access

9 to everything else or use this however they want; and

10 at some point, I will not do that. If he issues a

11 proper order, it's upon me to comply. I'm not going to

12 stipulate to something in advance so that he'll correct

13 his order. I'm sorry.

14 MR. FORGIE: All I'm saying, I would ask that

15 there be a reasonable time for him to comply with any

16 order, given the misunderstanding that has arisen in

17 relations to previous orders and the reason that we're

18 here today. I do think that time would be of some

19 benefit. Just by reasonable time, I mean reasonable

20 time.

21 HON. PARLEN L. McKENNA: Mr. Forgie, at this

22 time, I would request that you finish your rebuttal.

23 MR. FORGIE: May I have just a moment before I

24 do that to prepare?

25 HON. PARLEN L. McKENNA: Yes.

170

1 (A five-minute recess was taken.)

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

3 Mr. Forgie, please make your rebuttal.

4 MR. FORGIE: Let me begin again, because I

5 don't remember where I left off.

6 The documentation -- well, the information,

7 plead absence of any documentation which the Coast

8 Guard presented to this court, first of all,

9 presupposes that it's timely for that kind of an order.

10 As I indicated yesterday, I believe that --

11 and we have restated again today that we believe that

12 the order of proof as a precondition requires that an

13 act of incompetence be demonstrated while acting under

14 the authority of the license, and that that act of

15 incompetence must be demonstrated to be a threat to the

16 safety at sea and to suggest that he can't perform his

17 duties as a marine engineer.

18 And I don't think that's been done at all. In

19 fact, no attempt has been made. And the authority for

20 that has been set forth in our many motions and the

21 brief we submitted, and I would like the record to

22 reflect the brief was submitted yesterday, along with

23 supporting documents. That was served on the court and

24 on counsel for the Coast Guard.

25 HON. PARLEN L. McKENNA: And I would ask for

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1 your indulgence on that point, that you take it back

2 and mail it to my office --

3 MR. FORGIE: I'll do that.

4 HON. PARLEN L. McKENNA: -- given the fact

5 that it's seven, eight inches thick.

6 MR. FORGIE: I will do that to complete the

7 service.

8 HON. PARLEN L. McKENNA: The service has been

9 made.

10 ERIC SHINE: Okay. That's my only question.

11 I just didn't know if that was retaliation for some

12 reason or if it was just consideration on our part to

13 send it to the --

14 LT. HILL: Just carrying this big heavy thing

15 on the plane, we have nothing --

16 ERIC SHINE: The court still considers it's
17 been served?

18 HON. PARLEN L. McKENNA: Yes. I'm an old man.

19 I'm not going to carry some --

20 ERIC SHINE: I wouldn't --

21 HON. PARLEN L. McKENNA: -- ten-pound document

22 around with me.

23 ERIC SHINE: I wouldn't expect you to, your

24 Honor. I wasn't -- I wanted to make sure it wasn't

25 going to affect service.

172

1 HON. PARLEN L. McKENNA: Proceed.

2 Excuse me.

3 LT. HILL: I'm sorry.

4 MR. FORGIE: As to any documents that relate

5 or refer to or consist of Mr. Shine's medical records

6 or psychological records, we maintain a continuing

7 objection to the privilege, which, as I said, I believe

8 the Coast Guard has admitted exists under Federal law,

9 and I think which has existed under Federal law

10 throughout the time that they undertook efforts to

11 serve subpoenas in violation of that privilege. I

12 understand what the court's feeling is on it, as

13 expressed yesterday.

14 With respect to any possible waiver, there

15 have been no documents submitted that would indicate

16 the extent of that waiver. If any such waiver exists,

17 we strongly dispute the fact that there was any waiver.

18 If there was any waiver for any purpose, it was of

19 extremely limited purpose. He had every expectation

20 that any such documents that were obtained supposedly

21 in response to a waiver are very limited.

22 In conjunction with that argument, the Coast
23 Guard has also acknowledged that there's a right of

24 privacy with respect to those records. And I think

25 that right of privacy should, as Federal courts are now

173

1 doing, and in fact, the ECMJ executive order confirms,

2 that this privilege and the right of privacy is being

3 expanded, not contracted.

4 The Coast Guard has heavily emphasized the

5 reports of Dr. Kulik, bearing in mind Dr. Kulik, not

6 only is that information privileged and he asserts his

7 right to privacy, but Dr. Kulik was hired by ASM,

8 slash, APL in response to that entity's efforts to try

9 to demonstrate that Mr. Shine was suffering from some

10 emotional instability or mental incapacity. And I

11 think that we would be entitled to cross-examine

12 Dr. Kulik on issues associated with that.

13 The contents of the various letters, we --

14 there's a motion pending before this court relating to

15 how that is protected. He is -- Mr. Shine, in relation

16 to those documents, is asserting his whistle-blower

17 rights, the various statutes that have been submitted

18 over -- or communicated by Mr. Shine over the past

19 couple days do protect that information from use

20 against him in these kinds of proceedings. That is

21 essentially a retaliatory action by the Coast Guard in

22 an attempt to stifle that kind of writing and conduct.

23 And we believe that's totally inappropriate. That

24 would have a chilling effect on anybody in the future.

25 Merely because if an individual who's as passionate as

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1 he is about these kinds of issues simply writes letters

2 to employers or any governmental agency, if he thinks

3 that is going to be turned against him, it would be --

4 it will have an extremely chilling effect on that kind

5 of conduct. And I don't think it's permissible, and I

6 don't think it's appropriate.

7 Really, what should be examined here is

8 whether or not Eric Shine ever evidenced any incapacity

9 or incompetency while acting aboard a vessel. And I

10 think it's conceded almost by -- if not expressly done

11 by silence, that there is nothing he did aboard any

12 boat that would indicate that he was incompetent as a

13 marine engineer. And it's a sad fact about these

14 proceedings is that there's sort of an assumption that

15 he can't perform his job, and couldn't perform his job;

16 and yet, there's been no demonstration that he couldn't

17 perform his job. This is all essentially after the

18 fact. And if there is any indication of instability,

19 whatever that might be, any implication, it's not

20 instability that has anything to do with his job. It's

21 a depression, if that, associated with circumstances of

22 his life, which I addressed in detail yesterday.

23 HON. PARLEN L. McKENNA: But Counsel, I want

24 to make it perfectly clear to you that I am here to

25 protect the public interest. And if there is a -- if

175

1 there is evidence presented that casts a doubt about

2 whether Mr. Shine's mental condition is -- makes him

3 mentally incompetent, then you're saying that you can't

4 look any further, you can't look at any of his

5 medicals, you can't even go have a medical provider go

6 out and look at him; and so in other words, you're

7 totally estopped from even getting to the issue and,

8 therefore --

9 MR. FORGIE: No.

10 HON. PARLEN L. McKENNA: -- dismiss these
11 charges.

12 MR. FORGIE: No. The charging allegations do

13 not permit that kind of an analysis. They necessarily

14 involve an act of incompetence which demonstrates that

15 he cannot perform his duties as a marine engineer.

16 That's the charging allegation. And we continue to

17 assert that that condition be shown here. You know,

18 you or the Coast Guard may feel, that in a snapshot

19 view, there's something wrong. We strongly dispute

20 that, first of all.

21 But secondly, we point out again that the

22 charging statutes do not permit that kind of snapshot

23 view, that kind of snapshot revocation proceeding.

24 HON. PARLEN L. McKENNA: I will be looking

25 very closely at that.

176

1 MR. FORGIE: Okay. Now, with respect -- just

2 let me finish off the list here.

3 The letters, declarations, whatever you want

4 to call it, from his fellow crew members, it is my

5 recollection -- and we don't have those here before us,

6 but it is my recollection that those were created

7 either on the APL JACKSON or the vessel before that,

8 and they were -- they -- essentially, all they said

9 was -- they had nothing to do with his competency as a

10 marine engineer. There was nothing in there, "This guy

11 can't perform his job. This guy has done 'X,' 'Y' and

12 'Z' as a marine engineer. He screwed up and

13 jeopardized the safety of the vessel."

14 That never occurred. There's no indication

15 whatsoever in any of those declarations to that effect.

16 What they said was he is -- "He talks about

17 litigation all the time. We're afraid of being

18 involved in litigation." And in effect, they confirmed

19 that he is a whistle-blower.

20 Now, the arbitration awards --

21 LT. HILL: I just want to -- a little bit of

22 mischaracterization. Several people, just by his

23 presence on the boat, said it made it unseaworthy.

24 ERIC SHINE: You had your ten minutes.

25 LT. HILL: I'm objecting, just as you did,

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1 Mr. Shine.

2 ERIC SHINE: I don't think you've got the

3 right to object. He -- your Honor granted me the right

4 to object.

5 MR. FORGIE: The --

6 ERIC SHINE: It sounded good.

7 LT. HILL: Go ahead.

8 MR. FORGIE: Those are almost -- the cases

9 that we submitted are essentially on all fours. Read

10 those cases. Those cases were arbitration rulings,

11 awards, and they said, not only they're not going to

12 yank his licenses for that kind of stuff, but you can't

13 even fire the guy off the boat.

14 And he is saying that he never did anything.

15 He believes consistently that what he was talking about

16 has always been whistle-blowing and revealing things

17 that are wrong with the union, the grievance process

18 and his employers, in an effort to protect not only the

19 vessel, but national security. It's extremely

20 principled, and those guys that are on the boat just

21 didn't want to hear it.

22 And so then, it's my suggestion that if we

23 want to really find out what -- if those carry any

24 weight with the court at all, in terms of demonstrating

25 his, quote, unquote "mental incapacity," that we ought

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1 to be given a chance to cross-examine those people and

2 find out what really they were talking about and what

3 really they meant and what really they perceived he was

4 doing. That is what we're entitled to, in terms of a

5 full adjudication in a hearing.

6 Mr. Shine's position throughout has been, and

7 it is -- I think it is borne out by the documents which

8 we submitted in conjunction with our brief yesterday

9 and which I'll take home and then resend to you. I

10 know it's a lot to ask the court to review that before

11 issuing any ruling. But his position all along, this

12 is a labor dispute, and that alone is the reason why

13 we're here, because he was trying to assert these

14 principled positions, and the Coast Guard has

15 retaliated against him; and indeed, what this court

16 should do is remand this matter to Federal Court for

17 further proceedings to determine the underlying labor

18 issues prior to taking any action.

19 The suggestion by the Coast Guard here is that

20 there's no basis in fact for all those; and indeed,

21 it's -- one of the fundamental foundations of their

22 argument is that, "Look. He's just litigious, and so

23 he's so wrong on all these issues. Although we're not

24 going to look at the issues, he's just so wrong about

25 them that we're -- he must be mentally unstable."

179

1 LT. HILL: That's not the Coast Guard's

2 position.

3 MR. FORGIE: And yet, they have -- in their 64

4 exhibits which were submitted much earlier virtually

5 all of those have -- bear direct relationship to his

6 labor issues.

7 Now, again, the captain of the APL JACKSON, I

8 forgot his name, January of '02, this was mentioned

9 yesterday by the U.S. Coast Guard, there was an

10 indication that the captain declared Mr. Shine to be

11 insubordinate.

12 HON. PARLEN L. McKENNA: Mr. Forgie, you know

13 that this is an opportunity for the government to show

14 whether the issue of Mr. Shine's mental state is an

15 issue, and it's kind of like a show cause hearing as to

16 whether I should have -- should have ordered and should

17 continue to order a medical exam to find out whether

18 there's any fire underneath that smoke, if any smoke is

19 shown. Do you understand? It's not whether there's

20 the truth of the matter stated therein. It's whether

21 there is sufficient evidence presented, that I was

22 correct in ordering.

23 MR. FORGIE: What we are saying is that the

24 hearing on that issue -- I understand what the

25 standard -- what you perceive the standard to be.

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1 What we're saying, we would like a broader

2 hearing with a greater chance of addressing these

3 issues, simply because we perceive them to be kind of a

4 smear campaign, and there is this highly unusual

5 situation, wherein there does not appear to be any act

6 of incompetency at all.

7 And we would like the opportunity -- what

8 we're we talking --

9 HON. PARLEN L. McKENNA: It can all be

10 resolved by him going to an independent medical

11 psychiatric exam and demonstrating that there's no

12 problem. And he's unwilling to do that.

13 MR. FORGIE: No, not necessarily.

14 ERIC SHINE: Again, I tried to raise those

15 issues, your Honor, and address my concerns so that we

16 could fully address and adjudicate all those issues.

17 But you want to just let the order stand,

18 rather than address some of the concerns that I have,

19 like is that going to be a full waiver of my privilege.

20 I've seen the precedence out there, where the

21 commandant had said, no, if he agreed he knew this

22 would be used, he waived his privilege. It's an old

23 case. It's not even covered under Redman v. Jaffe or

24 whatever and the 50 states legislating support of the

25 therapist/patient privilege or the Supreme Court ruling

181

1 on it or the executive order by Clinton.

2 HON. PARLEN L. McKENNA: There is a -- there

3 is a standing objection by you and your counsel that

4 you do not want to submit to a medical exam.

5 ERIC SHINE: Not -- first and foremost, not an

6 improper one that's either the Navy doctor -- because

7 I've sued the U.S. Government.

8 MR. FORGIE: Let him finish.

9 HON. PARLEN L. McKENNA: All right. And so

10 since that order is extant, I am saying, that given the

11 state of this case, where you have an existing order

12 mandating that you have one, then -- and I'm picking

13 the one, my question was, it's not waiver because

14 you're under an order to do so.

15 ERIC SHINE: Well, but --

16 HON. PARLEN L. McKENNA: So either --

17 ERIC SHINE: I'm still trying to address these

18 issues.

19 MR. FORGIE: It's not a waiver, because you're

20 continuing the objection. All you're saying is you

21 would comply with the order.

22 ERIC SHINE: But I don't have --

23 MR. FORGIE: You're maintaining your

24 objection.

25 ERIC SHINE: But he issues the order, and then

182

1 it's upon me to comply.

2 HON. PARLEN L. McKENNA: No. I'm doing it

3 from the bench. But I'm not going to issue one if

4 you're not going to comply.

5 ERIC SHINE: But you're assuming I'm not going

6 to comply.

7 HON. PARLEN L. McKENNA: You haven't

8 complied -- you haven't complied so far.

9 ERIC SHINE: Because I've objected because I

10 have not been part of the process as to due process.

11 HON. PARLEN L. McKENNA: All right. The

12 answer is simple, sir. It's either a "yes" or a "no."

13 ERIC SHINE: Issue the order, and --

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

15 it my way.

16 ERIC SHINE: Again, your Honor, I'm asking you

17 to correct the order first and foremost.

18 HON. PARLEN L. McKENNA: I'm not going to do

19 that.

20 ERIC SHINE: So you won't correct a faulted

21 order?

22 HON. PARLEN L. McKENNA: It's not faulted.

23 ERIC SHINE: It is in my mind.

24 HON. PARLEN L. McKENNA: That's in your mind,

25 sir.

183

1 ERIC SHINE: Again --

2 HON. PARLEN L. McKENNA: End of discussion.

3 ERIC SHINE: I've raised legitimate concerns,

4 your Honor.

5 HON. PARLEN L. McKENNA: In your mind.

6 ERIC SHINE: Well, no. My counsel -- speak

7 up, Counsel. Do you feel that I should --

8 HON. PARLEN L. McKENNA: Does that -- all

9 right, yeah, answer the question.

10 ERIC SHINE: I mean, it's attorney/client

11 privilege; but again, I'm asking my counsel to voice my

12 position that there's some problems. He's already done

13 that, even as to the due process and the stipulation.

14 There's obviously an issue. All I'm asking the court

15 to do is to correct the order so that I can comply. I

16 cannot comply with what I see as a faulted order, first

17 and foremost. I should not be forced to stipulate to

18 the order to make me comply. That's saying that --

19 it's already clear, if you issue an order and I don't

20 comply, under 5.67, from your interpretation in the

21 moment, you're saying that if I don't comply, fine.

22 Issue the order, with an impartial, you know, medical

23 provider. That's why I ask for like even a hearing on

24 this issue so that it could be fully heard and I would

25 not be stifled so that you would hear my concerns, not

184

1 only as to the Navy doctor, which has been a concern,

2 because Mr. Forgie has been speaking for me in hearings

3 that I didn't even know existed. The issue of like

4 Dr. Erlich I brought up in court, and I'm showing my

5 competency right now before the court of like asking

6 questions, "Where did Dr. Erlich come from?" I don't

7 know. I didn't agree to it. I'm saying -- I'm asking,

8 and I'm objecting, and I'm protecting my rights.

9 HON. PARLEN L. McKENNA: I understand.

10 ERIC SHINE: But I'm protecting --

11 HON. PARLEN L. McKENNA: You're not protecting

12 your rights. What you're doing --

13 ERIC SHINE: To go to a Navy doctor is

14 conflicted because he's part of the U.S. government.

15 To go to a doctor that they find that --

16 HON. PARLEN L. McKENNA: That is enough. You

17 have said that on the record at least five times.

18 ERIC SHINE: Right. And I'm not saying that I

19 will not comply with the order. But until what I see

20 is a proper order that is not conflicted to where it is

21 an impartial doctor, I cannot, in good faith, comply

22 with the outstanding orders.

23 HON. PARLEN L. McKENNA: That's fine, sir.

24 ERIC SHINE: I mean, how is that not clear?

25 All I'm asking the court to do is listen to the

185

1 objections that have been presented, not only by

2 myself, but counsel, and obtain --

3 HON. PARLEN L. McKENNA: Mr. Forgie, would you

4 please counsel Mr. Shine either to accept my generous

5 offer or reject it?

6 ERIC SHINE: But you're forcing me to

7 stipulate to it, which I --

8 HON. PARLEN L. McKENNA: No. You're not

9 stipulating to anything. All you're doing is saying

10 that you will go, you will obey a lawful court order to

11 see --

12 ERIC SHINE: I have no choice.

13 HON. PARLEN L. McKENNA: -- an impartial --

14 ERIC SHINE: I have no choice.

15 MR. FORGIE: So say it.

16 ERIC SHINE: If you issue an order under these

17 proceedings, I have to comply --

18 HON. PARLEN L. McKENNA: Well --

19 ERIC SHINE: -- or you will rule --

20 HON. PARLEN L. McKENNA: Excuse me. I have a

21 July 30th order.

22 ERIC SHINE: But we have outstanding

23 motions --

24 HON. PARLEN L. McKENNA: -- that said you were

25 going to go to Dr. Erlich on August 6th.

186

1 ERIC SHINE: I didn't -- I didn't say that. I

2 objected to that.

3 HON. PARLEN L. McKENNA: You said it, because

4 it was said by your attorney.

5 ERIC SHINE: And we filed motions objecting to

6 that on other issues that have not ever had full

7 adjudication or been ruled on.

8 HON. PARLEN L. McKENNA: Your attorney was

9 representing you; so that's why I think that maybe

10 you're not going to comply.

11 ERIC SHINE: No.

12 MR. FORGIE: No; no.

13 ERIC SHINE: There's --

14 MR. FORGIE: I've just got to say -- stop.

15 We've got to be driving her crazy.

16 ERIC SHINE: Sorry.

17 MR. FORGIE: He was not privy to that, and I

18 think that clouds the issue, really, with all due

19 respect.

20 HON. PARLEN L. McKENNA: I know, but you

21 agreed to it, Counsel.

22 MR. FORGIE: No. I agreed to recommend it to

23 him, because I was trying to --

24 HON. PARLEN L. McKENNA: No, you agreed.

25 MR. FORGIE: -- facilitate the process.

187

1 HON. PARLEN L. McKENNA: You agreed, after due

2 diligence with Lt. Hill, that she was not conflicted

3 and that she would be acceptable as an independent

4 medical exam.

5 MR. FORGIE: Under --

6 HON. PARLEN L. McKENNA: Lt. Hill, you were

7 privy to that conversation. Was that not what

8 happened?

9 LT. HILL: Yes, your Honor.

10 ERIC SHINE: But I still have to sign off on

11 it. I'm sorry.

12 MR. FORGIE: That was the way I presented it,

13 was by way of recommendation to him. And I just think

14 that it's kind of side-stepping what we're really

15 trying to accomplish here, and --

16 HON. PARLEN L. McKENNA: So what I'm saying --

17 MR. FORGIE: I think we came close to an

18 understanding moments ago; that is, if the court orders

19 him to go to an exam with a neutral person, which you

20 are going to conduct with due diligence, that he will

21 maintain his objections across the board, and he will

22 comply with the court order. That's what I heard him

23 say.

24 HON. PARLEN L. McKENNA: Is that what you're

25 saying?

188

1 ERIC SHINE: I'm not stipulating to anything.

2 MR. FORGIE: You're not stipulating. You're

3 saying --

4 ERIC SHINE: I'm not --

5 MR. FORGIE: -- you'll comply with the court

6 order and maintaining your objections, maintaining your

7 objections for purposes that you might deem to be

8 later --

9 ERIC SHINE: Please, may I speak with counsel?

10 HON. PARLEN L. McKENNA: No. Just answer the

11 question. It's "Yes" or "No."

12 ERIC SHINE: It's attorney/client privilege,

13 and I'm trying to tell where I feel that he is injuring

14 me and my rights --

15 HON. PARLEN L. McKENNA: All right.

16 ERIC SHINE: -- because you're making me agree

17 to something.

18 HON. PARLEN L. McKENNA: I'm not making you do

19 anything. That's fine.

20 ERIC SHINE: Then all I'm asking you to do

21 correct the order, issue it and have that as the

22 outstanding order so that --

23 HON. PARLEN L. McKENNA: Sir --

24 ERIC SHINE: So that I may comply.

25 HON. PARLEN L. McKENNA: You may, and you may

189

1 not. That's why I'm not doing it.

2 ERIC SHINE: But I have --

3 HON. PARLEN L. McKENNA: I'm not going to do

4 it unless I have a clear statement from you that if I

5 issue an amended order, you will obey it.

6 ERIC SHINE: I have no --

7 HON. PARLEN L. McKENNA: It's "Yes" or "No."

8 ERIC SHINE: You're asking me to --

9 HON. PARLEN L. McKENNA: I'm asking you "Yes"

10 or "No," sir.

11 ERIC SHINE: I find it a violation of due

12 process that you're asking me stipulate to a compliance

13 with an unlawful order, which is -- it's like double

14 jeopardy. You're supposed to issue the order, if I

15 don't comply, then go ahead and fine me.

16 HON. PARLEN L. McKENNA: Really?

17 ERIC SHINE: Yes. In my mind, as far as my

18 rights and my protections --

19 HON. PARLEN L. McKENNA: All right. That's

20 fine. It's the end of the discussion.

21 ERIC SHINE: I'm asking to step outside, your

22 Honor, please.

23 HON. PARLEN L. McKENNA: It's the end of the

24 discussion.

25 ERIC SHINE: Your Honor, we're very close to

190

1 closing.

2 HON. PARLEN L. McKENNA: Does that conclude

3 your comments, Mr. Forgie?

4 MR. FORGIE: No.

5 HON. PARLEN L. McKENNA: You've exceeded your

6 ten minutes significantly.

7 Proceed.

8 MR. FORGIE: There is an assertion that there

9 was a state disability claim mentioned or filed. We

10 have no such documentation. We have no idea

11 whatsoever, and we don't know whether the court is

12 taking that into consideration.

13 LT. HILL: You do have it.

14 MR. FORGIE: I haven't seen it.

15 HON. PARLEN L. McKENNA: You don't dispute

16 that it might exist, though, do you?

17 ERIC SHINE: I dispute how it was obtained,

18 and not only that, the fact that -- no, your Honor,

19 again, as far as --

20 HON. PARLEN L. McKENNA: Again -- again, I'm

21 asking you to be quiet.

22 ERIC SHINE: You're fired. Do I need to do

23 that, literally, so I may be heard in the court and

24 present my position, your Honor, and defend myself?

25 You're telling me I cannot be heard in this court.

191

1 You're forcing me to get rid of my counsel so that I

2 may be heard and present my case before the court.

3 And I just find that -- I can't even find

4 words to -- and I'm asking right now that I need to

5 step outside to find out if I have to fire counsel and

6 represent myself. I've already filed in pro per.

7 Whether I'm co-counsel on this or not, I object, object

8 strongly not to be able to voice -- there's been

9 problems as to due process, as far as the actual

10 hearing, the doctor, whatever. I'm trying to address

11 those. And you're still forcing me to go through

12 counsel, where there's been miscommunication. And you

13 will not hear it from the horse's mouth. I'm sorry. I

14 just -- I can't -- and you're forcing me now to proceed

15 on medical --

16 HON. PARLEN L. McKENNA: Mr. Shine, you may

17 do -- you may do whatever you feel is in your best

18 interest. This hearing is going to conclude in

19 approximately ten minutes.

20 ERIC SHINE: Like I was saying --

21 HON. PARLEN L. McKENNA: So you may step

22 outside and use whatever portion of the ten minutes you

23 want. If you want to terminate your counsel, you may

24 do so. And any remaining matters would be done on

25 paper.

192

1 ERIC SHINE: So you're going to issue your

2 final order today?

3 HON. PARLEN L. McKENNA: Gee, do you want to

4 read that back?

5 ERIC SHINE: Well, no. I've asked --

6 HON. PARLEN L. McKENNA: I was issuing --

7 what's my final order say?

8 ERIC SHINE: I've tried to bring up the issues

9 of September 23rd, as far as even the doctor --

10 HON. PARLEN L. McKENNA: I'm going to give the

11 Coast Guard --

12 ERIC SHINE: A chance to file a motion?

13 HON. PARLEN L. McKENNA: We have a hearing

14 date set up for September 22nd or 23rd.

15 LT. HILL: 23rd.

16 HON. PARLEN L. McKENNA: All right. If there

17 is a failure to attend a -- my ordered psychological

18 exam, then I would give you approximately two weeks to

19 file your motion for summary decision, based upon the

20 inference that is contained therein.

21 LT. HILL: Yes, your Honor.

22 HON. PARLEN L. McKENNA: And you can move for

23 a -- to vacate my order regarding a hearing.

24 LT. HILL: Yes, your Honor.

25 ERIC SHINE: May I have a moment with counsel,

193

1 please?

2 HON. PARLEN L. McKENNA: Yes. I told you you

3 could.

4 (A two-minute recess was taken.)

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

6 MR. FORGIE: Given the court's ruling, we've

7 concluded our statements and --

8 ERIC SHINE: I get my ten minutes.

9 HON. PARLEN L. McKENNA: You certainly do.

10 MR. FORGIE: I defer to Mr. Shine.

11 ERIC SHINE: He shook his head no when he said

12 that.

13 HON. PARLEN L. McKENNA: I did not.

14 ERIC SHINE: It looked like it.

15 To follow up on what Mr. Forgie said, as far

16 as the issues of even medical or mental competency or

17 incompetency are supposed to require full adjudication.

18 There's commandants' decisions out on this upon appeal.

19 Even on the case, I think there's one

20 individual --

21 HON. PARLEN L. McKENNA: Called CDOA's.

22 ERIC SHINE: Okay.

23 HON. PARLEN L. McKENNA: Commandant's decision

24 on appeals.

25 ERIC SHINE: I'm sorry. I'm over acronyms.

194

1 CDOA's.

2 Matson, I believe, is one. There was one

3 where an individual had a brain fracture, an individual

4 where there's a report that came out about his

5 schizophrenia, which was his doctor's report. But the

6 commandant even went, as far as due process, that the

7 individual was given many opportunities to refute the

8 information. He didn't show up. They ordered a doctor

9 saying he didn't show up.

10 I have not failed to comply with the order.

11 There's legitimate concerns that I have, as far as the

12 outstanding orders. I've tried to address those with

13 the court. I don't have an objection to, obviously, a

14 lawful order, which is the implication that the court

15 is trying to infer. And I want to make that very clear

16 for the record. I do not see, "a," that it is a lawful

17 order or, "b," not just because of the privacy act

18 issues or privilege issues under Jaffe v. Redman, but

19 also the issues of how the records were obtained, how

20 this information was obtained, the issue that, first

21 and foremost, they have to show and prove an act of

22 incompetence.

23 Every case that's on the record is -- I think

24 there was one where the guy was in Spain or something.

25 He was found guilty by a Spanish court. And it was

195

1 actually overturned, because the Spanish court didn't

2 have authority or jurisdiction in the United States.

3 He'd actually killed somebody. And it was overturned.

4 The commandant reaffirmed it on appeal. But there was

5 clear adjudication of the issues by some tribunal as to

6 what this guy did. He killed somebody. It was very

7 clear. There was an act of incompetence.

8 There's other cases. I believe the one that's

9 schizophrenia, like I was saying, about the doctor's

10 report, it was introduced; and even the commandant

11 makes note that the individual had a chance to refute

12 it through the hearings, which I believe we've not been

13 afforded the right to evidence, subpoenas, depositions,

14 actual introduction of the records themselves. The

15 Coast Guard has introduced excerpts from letters that

16 haven't even been introduced in their entirety.

17 Mr. Forgie has actually read one of the

18 letters, the one that they brought up about Tim

19 McVeigh. And I've raised it to the Coast Guard of why

20 they would not investigate that. And to me, it goes to

21 the issue of dereliction of duty, which I've been

22 raising for quite some time, that at that point, they

23 were duty bound to come out to me and say, "What is

24 this about? What does this mean? Are you going to do

25 something," if that's what they're trying to infer now

196

1 from that letter. That letter itself was a statutorily

2 protected right, not only under free speech and other

3 laws, but under the Merchant Marine Act of 1936, LMRDA,

4 and other laws that this court does not have the

5 jurisdiction to rule on, to impose itself upon me by

6 ruling anything other than staying the proceedings or

7 working out the difficulties with the proper order as

8 to an impartial doctor that is obtained by the court

9 and not the Coast Guard, not the opposition. They're

10 already using the employer's DME, defense medical exam,

11 that was paid for by ASM, Dr. Kulik.

12 There's numerous other records that are in

13 question. Even Dr. Todros, who was fired, because I'm

14 a recovering alcoholic, I have 19 years sober, I had

15 issue with taking any kind of drugs whatsoever for any

16 purpose. That individual was fired. There's issues

17 like that that need to be raised and adjudicated. To

18 some level and degree, before we even get there, there

19 has to be an act of incompetence. I've done nothing

20 wrong. And the proceedings that are going on here are

21 further harassment, not only by the Coast Guard, but

22 now the office of administrative law judges wants to go

23 ahead and issue an order against me, saying that if I

24 do not comply, that's a violation of law, rule or

25 regulation, when I have issues not with only the order

197

1 itself, but the authority for the order, but

2 specifically the order itself as to impartiality. I've

3 raised that issue in court. I'm protecting my rights,

4 whether Mr. Forgie erringly stipulated to it or not, I

5 do not believe that he did. I think it's been

6 misconstrued by the court or the process. Whatever,

7 it's a miscommunication, misunderstanding, and I'm

8 making it clear on the record that I'm moving to

9 correct that record.

10 I've asked the court to issue a proper order

11 as to an impartial -- or panel of impartial -- you

12 brought up, your Honor, yesterday five, you know,

13 whatever -- whatever it is, that it be chosen and found

14 from the court and not the Coast Guard, who is a party

15 to this.

16 HON. PARLEN L. McKENNA: And I indicated to

17 you that I would be willing, even though -- even

18 though, based upon the due diligence of your lawyer,

19 that Dr. Erlich was found not to be conflicted and that

20 you have presented no evidence at this hearing that she

21 is indeed conflicted.

22 ERIC SHINE: That -- who, Dr. Erlich?

23 HON. PARLEN L. McKENNA: Dr. Erlich.

24 ERIC SHINE: No. The Coast Guard presented --

25 HON. PARLEN L. McKENNA: All right. Now what

198

1 I'm saying to you is that I offered you the

2 opportunity, that if you would go to another

3 psychiatrist that I picked who wasn't conflicted, even

4 maintaining your objection to going in the first place,

5 if you would go, then I would issue another order.

6 ERIC SHINE: But again --

7 HON. PARLEN L. McKENNA: All I needed was a

8 statement that you would obey the order.

9 ERIC SHINE: Your Honor --

10 HON. PARLEN L. McKENNA: If you won't obey the

11 order, then I'm not going to issue it.

12 ERIC SHINE: It's not an issue of whether or

13 not I'll obey it. You're depriving me of other avenues

14 of redress, even a temporary restraining order against

15 you for imposing that upon me.

16 And I am forced now to bring that up, which is

17 attorney/client privilege, saying that if you impose

18 yourself against me and correct the order, you're

19 asking me to stipulate in court that I will comply with

20 what I believe is an unlawful order. That does not

21 make sense to me.

22 At some point, if you correct the order, first

23 and foremost, the issue of -- the only thing that I

24 will stipulate to is that if you find that there's --

25 if you find the doctor yourself or a panel, then it

199

1 will be a lawful order.

2 Right now, as to Dr. Erlich, I -- it is my

3 position that I did not stipulate to that. My counsel

4 did not stipulate to that.

5 HON. PARLEN L. McKENNA: That might be your

6 position, but the rule doesn't say -- the rule doesn't

7 say that I pick it.

8 ERIC SHINE: No, your Honor. If you read the

9 rule that you read yesterday, it's very clear that it's

10 chosen by your Honor and not the opposition. The

11 opposition was the one who chose Dr. Erlich, not --

12 HON. PARLEN L. McKENNA: That's fine.

13 ERIC SHINE: But he brought it up in court and

14 even mentioned it on the record. It's a matter of

15 record, your Honor.

16 HON. PARLEN L. McKENNA: The record is clear

17 as to how Dr. Erlich was chosen.

18 ERIC SHINE: Could you restate and reaffirm

19 how --

20 HON. PARLEN L. McKENNA: There is exactly no

21 evidence in this record that Dr. Erlich is conflicted.

22 ERIC SHINE: And again, your Honor, the Coast

23 Guard stated yesterday on the record as to the process

24 that was followed. They were a party to that process.

25 I did not stipulate to it. This individual did not

200

1 come from the court, was not found on an impartial

2 basis.

3 HON. PARLEN L. McKENNA: The solution is quite

4 clear. Just tell me that you would obey my order and

5 go to the psychiatrist that I would pick, and this is

6 over.

7 ERIC SHINE: But again, this goes --

8 HON. PARLEN L. McKENNA: Don't give me "but

9 again." It's "Yes" or "No."

10 ERIC SHINE: But --

11 HON. PARLEN L. McKENNA: It's "Yes" or "No,"

12 sir.

13 ERIC SHINE: It's Napoleonic law. You're

14 asking me to unprove their case; where, no, They're

15 supposed to prove the incompetence, not me disprove --

16 HON. PARLEN L. McKENNA: I know that's your

17 opinion.

18 ERIC SHINE: It's the opinion of the United

19 States Constitution. It's due process, your Honor.

20 This is not Napoleonic law, where I have to disprove

21 the charges. They have to prove the charges.

22 HON. PARLEN L. McKENNA: I find that there's

23 sufficient basis, factual basis, separate and apart

24 from the medical basis, and in addition, there is

25 separate medical basis which are sufficient cause to

201

1 make me feel that you need to have an independent

2 medical exam.

3 ERIC SHINE: Can you cite the reasons for the

4 record?

5 HON. PARLEN L. McKENNA: No. I'm not -- I

6 will do it in writing. This is a -- this is basically,

7 is there sufficient basis to have you looked at.

8 ERIC SHINE: What is the act of incompetence?

9 What am I being charged with that --

10 HON. PARLEN L. McKENNA: That's fine, sir.

11 ERIC SHINE: No. But I'm asking you, your

12 Honor, so it's clear. Because at some point, it's not

13 clear from the record or anything else what I am being

14 accused of that even brings me before this court.

15 HON. PARLEN L. McKENNA: All right. We'll

16 stand adjourned.

17 Thank you very much.

18 (Proceedings concluded at 10:55 a.m.)

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