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1 Guard has made more than enough of a case that we

2 have -- there is an issue of Mr. Shine's mental

3 competence at issue before this court.

4 ERIC SHINE: They've tried to get a hold of my

5 medical records for my drug and alcohol rehab. I've

6 been sober for 19 years; and even under the undue

7 pressure that I'm brought forth in these proceedings

8 and the U.S. District Court, rather than simply having

9 the stuff heard in arbitration, which I've been asking

10 for for God knows how long, the licensed personnel

11 board, I am -- more pressure is brought to bear on me,

12 which I feel is further harassment and is intended to

13 hopefully have me, you know, do something in these

14 proceedings, acting under the authority of my license,

15 that can be, at some point, used against me, which is

16 ridiculous.

17 And the Coast Guard still won't address and

18 point themselves in the right direction as to what's

19 going on within the union and the employers and the

20 maritime industry on a larger scale. They just want to

21 use me as a scapegoat to shut me up and use, you know,

22 whatever they can find, not even getting to an issue of

23 act of incompetence. They just want to say, "He's

24 incompetent. We're going to take his license."

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

75

1 Mr. --

2 LT. HILL: That's good enough, your Honor.

3 HON. PARLEN L. McKENNA: All right. You hope

4 it's good enough.

5 Mr. Forgie, do you have some rebuttal

6 comments --

7 MR. FORGIE: Yes, I do, your Honor.

8 HON. PARLEN L. McKENNA: -- before I rule on

9 that issue as to reconsideration of my previous orders

10 that are extant?

11 MR. FORGIE: On that point, I have to

12 reiterate that I have been under the impression, and I

13 have so told Mr. Shine, that those orders were

14 rescinded pending this determination today; that is,

15 that there would be otherwise no reason to conduct this

16 hearing; that is, a prima facie showing of the need for

17 a mental exam if, indeed, those -- that issue had

18 already been decided. That is what I've told him.

19 HON. PARLEN L. McKENNA: I can understand that

20 that's what you've told him, but you never heard from

21 me out of my mouth that I was rescinding those orders,

22 and you have no order that I rescinded those orders; so

23 therefore, they are extant.

24 But in any event, let me be clear. That is

25 not really the relevant issue. The relevant issue is,

76

1 that after I hear your comments, if I determine, under

2 20 CFR -- under 33 CFR 20.1313 that the medical/mental

3 incompetency is at issue in this proceeding, his mental

4 competence, then that is sufficient basis for me to

5 determine that he has to go get his medical exam, which

6 corresponds with my July 30, 2003 order.

7 So if he was agreeable to going, even at this

8 late date, in going and getting the medical exam with

9 Dr. Erlich, then --

10 ERIC SHINE: I'm not going to agree to it.

11 It's a violation of my rights.

12 MR. FORGIE: Move to strike.

13 HON. PARLEN L. McKENNA: Denied.

14 ERIC SHINE: Well, I changed my mind. No, I'm

15 just kidding.

16 HON. PARLEN L. McKENNA: I understand.

17 ERIC SHINE: I'm kidding. No. But at some

18 point, I'm trying to get the issues of the restraining,

19 not --

20 MR. FORGIE: Please.

21 ERIC SHINE: -- the two outstanding --

22 ERIC SHINE: No. It's important, because I

23 understand clearly what you're saying, especially when

24 you keep repeating appeal and other issues, that you're

25 saying that these orders are outstanding, at some point

77

1 today, on a prima facie showing, and if I refuse to go

2 to the doctor today, you're going to try to take my

3 license.

4 Correct me if I'm wrong. Without the

5 September 23rd hearing, you're going to rule -- if I

6 say today and you order that, "Eric, I want you to go

7 to a doctor. There's more than enough evidence to show

8 that."

9 Right now, still in the hearing, it's not like

10 two years ago or whatever, or 1984 when I got sober,

11 it's in the course of these proceedings as I'm, quote,

12 unquote, "acting under the authority of my license,"

13 that I'm still -- whether I was or not is in dispute,

14 but at this point in the proceedings, I'm incompetent,

15 medically or mentally.

16 And that --

17 HON. PARLEN L. McKENNA: Mr. Shine, what's

18 going to happen is if there is, by operation of law, an

19 inference if you refuse to, and then there is the issue

20 of your affirmative defenses which is what I'm going to

21 be ruling on.

22 ERIC SHINE: Today?

23 HON. PARLEN L. McKENNA: Some of them today or

24 tomorrow.

25 Then there is the issue of exactly -- I mean,

78

1 you have filed, through your counsel, a myriad of

2 motions which are still outstanding which I need to

3 rule on. And I don't know if Mr. Forgie told you, but

4 in at least two of the conference calls, the Coast

5 Guard has threatened Mr. Forgie with the filing of a

6 motion for summary decision if you fail to go to the

7 medical exam.

8 ERIC SHINE: And that's what I'm asking. It

9 sounds like today that you're ready to rule on a

10 summary decision by the Coast Guard that I've not seen.

11 HON. PARLEN L. McKENNA: Incorrect.

12 ERIC SHINE: Okay. And that's where I have --

13 HON. PARLEN L. McKENNA: If the Coast Guard so

14 chooses to file that motion, which they've indicated

15 that they intend to if you don't --

16 ERIC SHINE: And that's news to me. That's

17 the first I've heard of it.

18 HON. PARLEN L. McKENNA: If you don't take the

19 medical exam, then they're going to file. And then I

20 would rule on that.

21 If they prevail, there would be no further

22 proceedings, and this case would be over. If they

23 don't prevail, then the case would either be dismissed

24 for them failing to make a case, which is not going to

25 happen --

79

1 ERIC SHINE: But even at summary decision,

2 there's going to be oral arguments. Is that going to

3 happen September 23rd or --

4 HON. PARLEN L. McKENNA: No. There's not

5 going to be oral arguments. It's going to be on paper.

6 ERIC SHINE: Really?

7 HON. PARLEN L. McKENNA: Yes.

8 ERIC SHINE: So again --

9 HON. PARLEN L. McKENNA: As provided in the

10 regulations.

11 ERIC SHINE: So you're saying that I will not

12 have a chance to enter any oral arguments or have the

13 matters presented by both parties or have any evidence

14 or anything like that, it's just going to be motion

15 papers, you're going to decide on two as presented --

16 HON. PARLEN L. McKENNA: Whatever motions you

17 file, I would rule on them. And how I rule will depend

18 upon how this case proceeds.

19 ERIC SHINE: But even as to the motions that

20 are outstanding, like what's been filed today or

21 Richman v. Jaffe or, you know --

22 HON. PARLEN L. McKENNA: I'm going to be

23 ruling on them.

24 ERIC SHINE: Okay.

25 LT. HILL: And I have our responses for some

80

1 of them, and then we'll discuss what time you want us

2 for the other ones.

3 ERIC SHINE: I'm just trying to be real clear,

4 because I haven't been party to all these conversations

5 and hearings, as I consider them, or prehearings, that

6 the judge is meeting with both parties. I haven't been

7 judicially noticed, or they haven't been calendared.

8 And I'm objecting --

9 HON. PARLEN L. McKENNA: Nothing has happened.

10 They have filed their motion.

11 ERIC SHINE: You've issued two orders, one for

12 medical records and medical exams. And I --

13 LT. HILL: Just real quick, by the presence of

14 your attorney at those conferences, you were present.

15 ERIC SHINE: Look, whatever. That's your

16 position, but --

17 LT. HILL: That's the law.

18 HON. PARLEN L. McKENNA: That is the law.

19 ERIC SHINE: Well, no. Again, as to due

20 process, they are supposed to be judicially noticed and

21 calendared.

22 And whatever my counsel --

23 HON. PARLEN L. McKENNA: Well, if your lawyer

24 or you filed a document instructing the judge to comply

25 with the Federal law, then that might be the case.

81

1 ERIC SHINE: Right.

2 HON. PARLEN L. McKENNA: But that's not the

3 case.

4 ERIC SHINE: I have made that oral motion

5 myself, that at some point, I want the APA filed. I

6 even stated about a mistrial or de novo, because

7 that has not --

8 HON. PARLEN L. McKENNA: And when was this?

9 ERIC SHINE: Earlier this morning.

10 HON. PARLEN L. McKENNA: And that's why we're

11 out here right now.

12 ERIC SHINE: Well, no. You denied it.

13 HON. PARLEN L. McKENNA: I denied ADR.

14 ERIC SHINE: No. I'm not talking about ADR.
15 I'm saying that the several -- three or four

16 proceedings that I was not party to, I object to

17 strongly, and I'm putting it on the record. Whether

18 counsel made an error or there was a misunderstanding

19 or miscommunication, I'm making it very clear that I

20 object strongly; because even now we're proceeding on

21 issues that I was not there for, to object to, to

22 direct counsel towards filing motions doing, you know,

23 one thing or another.

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

25 ERIC SHINE: But all this is being thrown in

82

1 my face now in the middle of court.

2 HON. PARLEN L. McKENNA: Mr. Shine, you have

3 two options.

4 One, if I end up ruling that I am reaffirming

5 my two previous orders, then you either get the

6 independent medical exam or you don't.

7 ERIC SHINE: But even that --

8 HON. PARLEN L. McKENNA: It's your option.

9 And if you choose not to, that will

10 precipitate an action by the Coast Guard in accordance

11 with what they've stated.

12 And up to this point, nothing has happened.

13 ERIC SHINE: But even the issues as to your

14 orders that have been put forth, I have objections

15 that --

16 HON. PARLEN L. McKENNA: I understand.

17 ERIC SHINE: Who is that doctor? Where did

18 they come from? Did that come from the -- because I

19 wasn't there. I didn't hear all this. Did the ALJ

20 pick them or the Coast Guard pass it to them?

21 HON. PARLEN L. McKENNA: You can get all that

22 information from your lawyer.

23 ERIC SHINE: But it should be a matter of

24 record, and that's what I'm protesting. Because at

25 some point, I'm trying to communicate effectively --

83

1 HON. PARLEN L. McKENNA: Okay. Let me

2 communicate this to you.

3 ERIC SHINE: But does the court --

4 HON. PARLEN L. McKENNA: On July 30th, 2003, I

5 issued an order.

6 Did you read that order?

7 ERIC SHINE: Yes, your Honor.

8 HON. PARLEN L. McKENNA: All right. It says,

9 "On July 15, 2003, the United States Coast Guard

10 submitted a motion for a mental health psychological

11 examination at the Navy Medical Center in the

12 above-captioned matter. On July 16th, 2003, respondent

13 submitted his objection to any such examination on the

14 basis of relevancy. A conference call was held on

15 July 29th, 2003, wherein the Coast Guard withdrew its

16 request to use a Navy medical health expert as an

17 accommodation to the respondent."

18 Now, that accommodation, sir, was that you did

19 not want to go to a mental health exam by a Navy

20 person. All right. And so between -- the Coast Guard

21 had agreed to an accommodation for you and -- the

22 respondent, while maintaining his objection to the

23 examination, agreed that if the Coast Guard would

24 utilize the services of Dr. Catherine Erlich, the

25 respondents would pay the cost of such examination.

84

1 ERIC SHINE: I don't even know who Erlich is

2 or where that came from.

3 HON. PARLEN L. McKENNA: Okay. You should be

4 talking with your lawyer.

5 ERIC SHINE: Beyond that --

6 HON. PARLEN L. McKENNA: There is no "beyond

7 that."

8 ERIC SHINE: No. And it goes to the issue

9 of -- and this is why hearing an oral argument on

10 attorney/client privilege disputes, courts cannot

11 summarily determine disputes; i.e.; whether the

12 matter's within the scope of the privilege, whether an

13 exception exists or whether the privilege has been

14 waived. On motions raising a prima facie claim of

15 attorney/client privilege, the judge must accord a full

16 hearing with oral arguments before ordering client

17 confidences --

18 HON. PARLEN L. McKENNA: What case is that?

19 ERIC SHINE: Titmas v. Superior Court.

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

21 that's a California appellate case, correct?

22 ERIC SHINE: True.

23 HON. PARLEN L. McKENNA: All right. And where

24 are we today?

25 ERIC SHINE: In California. Oh, my God.

85

1 HON. PARLEN L. McKENNA: Oh, we're in

2 California. Have you ever heard of primacy?

3 ERIC SHINE: Yeah; but it doesn't negate my

4 rights as a citizen of the State.

5 Of California, either.

6 HON. PARLEN L. McKENNA: Well, when -- I would

7 cite to you medical marijuana.

8 ERIC SHINE: I'm not smoking pot. I haven't

9 been accused of smoking pot.

10 HON. PARLEN L. McKENNA: I'm not saying that

11 you're smoking pot. I'm citing that as a precedence

12 that Federal law --

13 ERIC SHINE: But --

14 HON. PARLEN L. McKENNA: -- supersedes the

15 state law.

16 ERIC SHINE: But that's where there's

17 violation of law, rule or regulation, like opium or

18 drugs or whatever, something that affects the national

19 consciousness --

20 HON. PARLEN L. McKENNA: That's your opinion.

21 ERIC SHINE: No. I'm being accused of what?

22 It's still not clear what I'm being accused of as to an

23 act of incompetence; because even Lt. Tribolet -- and

24 that's why I've asked him to be officially recused so

25 that -- rather than Lt. Hill working with Tribolet,

86

1 that he's taking affidavits and depositions from

2 Lt. Tribolet, because he stated himself that the letter

3 he received back from the U.S. Coast Guard commandant

4 where I blew the whistle on the local MSO, that was the

5 act of incompetence.

6 HON. PARLEN L. McKENNA: All right.

7 ERIC SHINE: That is a statutory --

8 HON. PARLEN L. McKENNA: Let me try and

9 synthesize this thing for you, Mr. Shine.

10 Mr. Forgie started out with an argument

11 earlier today, wherein he said that he wants the

12 government to make a showing as to a need for the

13 independent medical exam. 1313 doesn't require that.

14 And indeed, under 46 CFR Section 5.67, there's no

15 patient/physician privilege. And I find your reading

16 of Jaffe to be wrong.

17 ERIC SHINE: Even the executive order that's

18 been issued and/or 50 states legislating --

19 HON. PARLEN L. McKENNA: I'm telling you that

20 is how I am ruling.

21 Now --

22 ERIC SHINE: So you've already ruled --

23 HON. PARLEN L. McKENNA: Basically, what you

24 and Mr. Forgie are asking me to do is you're saying

25 that the public interest has to take a back seat to

87

1 your rights to keep your psychological condition

2 secret.

3 ERIC SHINE: What condition?

4 MR. FORGIE: No.

5 HON. PARLEN L. McKENNA: Let me just finish.

6 Well, are you saying that -- the Coast Guard

7 is saying that he is psychologically incompetent to

8 perform his duties as a licensed mariner. All right.

9 So they made that statement, and they filed pleadings

10 to support it. And I issued an order saying, under

11 1313, that since that is an issue, that he needs to go

12 to have an independent medical exam.

13 And then you said, "Well, no. You can't have

14 any of his medicals, and he doesn't have to go take a

15 medical exam."

16 So what happens if he is severely and

17 emotionally at risk and incompetent to perform his

18 duty? Does the public interest just not have the

19 opportunity to keep him off the water?

20 ERIC SHINE: But --

21 HON. PARLEN L. McKENNA: I mean, how are they

22 supposed -- if there is sufficient basis, they're

23 calling into his question his mental competency --

24 ERIC SHINE: Through an act of incompetence,

25 though. They're backdooring the whole issue. They're

88

1 supposed to first and foremost -- sorry.

2 HON. PARLEN L. McKENNA: That's what I'm

3 saying to you.

4 Go ahead.

5 MR. FORGIE: Unfortunately, for the Coast

6 Guard, their charging allegation under 7703, which

7 requires an act of incompetence, and all the cases that

8 you've cited in previous orders, with all due respect,

9 show a direct connection between an act of misconduct

10 or incompetence, whatever you want to call it, directly

11 flowing into an analysis of the person's capacity.

12 ERIC SHINE: Even Matson.

13 MR. FORGIE: There is a direct connection

14 between those two, and that is what is required under

15 7703, which is the only basis why they're here.

16 HON. PARLEN L. McKENNA: All right.

17 MR. FORGIE: Now, that is fundamental to this

18 whole proceeding; and unfortunately -- I understand

19 your logic, that what are you going to do with somebody

20 who is perceived as being, in a snapshot view,

21 incapable of performing their task, for whatever

22 reason.

23 Hypothetically, you can't -- it's not allowed

24 under 7703 that that kind of a snapshot view, well

25 after the fact, well after he was ever aboard a ship,

89

1 can be used as the sole basis for yanking somebody's

2 license. That's simply not provided for under the

3 statutes. It may be a mistake. I don't know. But the

4 fact is that's the statute. There has to be an act of

5 incompetence.

6 There is no single case which you can point to

7 where that has ever occurred otherwise. There is no

8 case where you can demonstrate that a person's

9 psychological thing just arose after they got off

10 boats, and then they just yanked his license. Every

11 single one, including the statute, it's demonstrated a

12 connection between the two. And that's what we're

13 looking at here.

14 And the situation is made even worse by the

15 following: He was kicked off the APL JACKSON and

16 discharged with a permanent do not hire. And the

17 reason that that occurred was because he was being a

18 problem and they -- the crew members didn't like him.

19 Being a problem -- by that I mean, he was asserting

20 what he has been talking about here.

21 Obviously, he feels strongly about this stuff.

22 There's no question about that. And none of us might

23 not like the way he presents it. In fact, he's really

24 smart, and he's been dealing with this stuff for so

25 long. But the situation is vastly more aggravated by

90

1 what transpired since the time he left the vessels.

2 I encourage you to look at the document which

3 we've submitted here today before you make any rulings

4 about affirmative defenses, which I was not aware you
5 were going to do in any case, but before you make any

6 ruling about this medical examination; because this is

7 something -- I think I might have mentioned it at one

8 time or another. If you look at his writings during

9 these -- the grievance periods before January of '02

10 when he was actually working on boats, and he was

11 working on boats for 13 years or something, and no one

12 really -- let's be frank. No one ever really stepped

13 forward and said the guy is not a good marine engineer.

14 That never happened. They just didn't like his style.

15 They didn't like the fact that he talked too much. But

16 is that really a reason --

17 ERIC SHINE: No. They didn't like the fact,

18 that even here, that I assert my rights, period. And

19 I'm sorry that --

20 MR. FORGIE: Let me finish.

21 ERIC SHINE: I'm informed. I went to a

22 federal academy. When I understand something that

23 doesn't sound right, we have a process -- a grievance

24 and arbitration process, the LPB, which is statutory,

25 which is no more, and hasn't been for 15 or 20 years.

91

1 That's the core and crux of what's going on here.

2 MR. FORGIE: Give me --

3 HON. PARLEN L. McKENNA: I'm going to

4 interrupt you just a second, and then you can start up

5 again.

6 Lieutenant, as to the act of incompetence, do

7 you subscribe to Mr. Forgie's postulation as to that

8 there has to be an act of incompetence?

9 LT. HILL: I wish I had my pleadings with me

10 here.

11 One thing that -- in response to that, I will

12 show that Dr. Riddle stated that he was mentally

13 incompetent and unable to work from April 2001 until an

14 estimate of 2003. That incorporates both of the

15 times the -- at least, for sure, the JACKSON. I'm not

16 sure of the MAUI that we mentioned there.

17 ERIC SHINE: Again, it's taken out of context.

18 HON. PARLEN L. McKENNA: All right.

19 LT. HILL: Mentally incompetent to perform his

20 duty, and that's the definition -- one of the

21 definitions of incompetence is inability to perform his

22 duties.

23 So he was medically diagnosed by a doctor

24 while on board those ships as being mentally

25 incompetent and unable to --

92

1 ERIC SHINE: It was backdated, your Honor.

2 MR. FORGIE: By the way, we move to strike all

3 of those comments on the basis of our motions which are

4 pending and on the comments that I made earlier about

5 privilege, which, by the way, the Coast Guard has

6 acknowledged.

7 Contrary to the court's opinion, the Coast

8 Guard earlier today acknowledged that, in fact, there

9 is a Federal --

10 LT. HILL: The Coast Guard --

11 MR. FORGIE: -- privilege of

12 psychotherapist/patient.

13 ERIC SHINE: They're not even sure, though.

14 LT. HILL: The Coast Guard says, that if it

15 does exist, it doesn't matter at all, because he's

16 waived it, as clearly indicated by the release of his

17 records, specifically from --

18 MR. FORGIE: I wrote it down. He admitted it.

19 LT. HILL: -- specifically from Dr. Riddle.

20 MR. FORGIE: He admitted it.

21 LT. HILL: Specifically from --

22 MR. FORGIE: He admitted that there was a

23 psychotherapist/patient privilege.

24 HON. PARLEN L. McKENNA: But there is not --

25 no, there is not one in Federal law.

93

1 MR. FORGIE: Okay. I understand that's your

2 ruling.

3 LT. HILL: Overruled.

4 ERIC SHINE: Supreme Court.

5 MR. FORGIE: Lieutenant Hill overruled.

6 ERIC SHINE: There's 50 states --

7 MR. FORGIE: Hang on a second.

8 It's -- that entire thing is set forth in

9 our -- I want to finish my chronology of what occurred

10 here.

11 HON. PARLEN L. McKENNA: Yes.

12 MR. FORGIE: And the difference -- what I'm

13 trying to point out here is the difference between what

14 has transpired in earlier situations like this of

15 incompetence or misconduct, and the difference between

16 those and this case, is that there is no connection

17 between what he is undergoing, in terms of his life

18 right now, and what he might have even allegedly done

19 on these ships. There is no connection whatsoever.

20 And if you look through those, you'll see a

21 couple of e-mails from Lt. Benson, which I mentioned

22 earlier, and Lt. Tribolet. In May '02, they obviously

23 were on a witch hunt, and they were looking for

24 something to get him for. This is why he feels that

25 somebody is after him.

94

1 If you look at them, it's actually pretty

2 striking, "We can't find anything on him now, but I'm

3 sure we might be able to frame the issues using

4 maritime tort law to find some misconduct." And

5 what --

6 ERIC SHINE: Then he files March 6 the

7 complaint.

8 HON. PARLEN L. McKENNA: Did it ever occur to

9 you, Mr. Shine, that you're your own worst enemy?

10 ERIC SHINE: But your Honor, that's why I

11 asked for a -- like a hearing that was ADR or something

12 else; so this could be expressed openly, so that at

13 some point, if there was clarification needed from

14 myself --

15 MR. FORGIE: I'm sorry. That was a rhetorical

16 question.

17 HON. PARLEN L. McKENNA: I'm sorry, too.

18 ERIC SHINE: I'm sorry.

19 LT. HILL: The judge has already issued an

20 order concerning the misconduct, and that's already an

21 order of this court.

22 HON. PARLEN L. McKENNA: What misconduct?

23 ERIC SHINE: Exactly.

24 LT. HILL: I'm sorry. The mental incompetence

25 is an issue in this case, and that you do have the

95

1 jurisdiction to review that.

2 MR. FORGIE: May I finish?

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

4 MR. FORGIE: This is his life since January of

5 '02 since he stopped working aboard vessels. They

6 blacklisted him. His own union, who is his adversary

7 now, has glumly admitted that he was wrongfully

8 discharged. We submitted the arbitration release to

9 you with our documents today, which they found, and

10 which they assert and acknowledge, proves that he was

11 wrongfully discharged from the APL JACKSON.

12 He has neither gotten any remedy in a civil

13 court, nor has he been able to arbitrate that wrongful

14 discharge, despite the fact that even adversaries

15 agree, and the case law agrees, that he was wrongfully

16 discharged. What has happened since then? He applied

17 for ten other jobs on vessels between January and March

18 or April of 2002. What did they do? They declared him

19 to be disqualified for the jobs, including one where he

20 was supposedly going to get on some ship that had some

21 defense-related thing, and they told him because he

22 didn't have a gun certificate or --

23 ERIC SHINE: Small arms training.

24 MR. FORGIE: Small arms training on a boat.

25 That's the reason why they didn't take him on the job.

96

1 Can you blame him for feeling the way he does?

2 Now, he hasn't worked since then. He was

3 making good money before. He hasn't worked at all.

4 They've taken two houses. He's driving a car around

5 that he's looking in the rearview mirror constantly

6 they're going to repossess him. I was in his house for

7 a while, the house he used to have, he doesn't have any

8 more. He's essentially a homeless guy. The creditors

9 were calling about every 20 minutes, and he didn't have

10 anything to say to them, because he didn't have any

11 money to pay them.

12 That's his life now. He has no money. He has

13 no family, really, to speak of, no real close friends.

14 And he has -- to this day, he has been struggling at

15 this rate and this intensity for 18 months, and he has

16 not gotten a single sliver of a remedy or really even

17 an acknowledgement. Because with each passing month,

18 as he becomes more and more frustrated, the people push

19 back even harder.

20 And I hate to see that happen; and yet, the

21 Coast Guard jumps in in March of '03, right at the time

22 when things -- he has been out of work for a year and a

23 half, and they add insult to injury, or vice versa,

24 file this thing against him, kick him when he's down.

25 And then they turn around, and -- you look back at

97

1 history. Nothing happened on boats, but they say,

2 "Look at him now. Look at the guy. He just acts up.

3 He just won't shut up. He's raging and everything."

4 And they're using that -- it seems so

5 boot-strapped to me, and it's so qualitatively

6 incomplete, inconsistent with the other cases which

7 you've cited regarding competency and whether or not an

8 act of incompetence is required. They've completely

9 disregarded it and said, "Look at this man at the 11th

10 hour, 59th minute. He's a mess. Take his license.

11 And we don't care about whether or not we can show that

12 those things had anything to do with his ability as a

13 marine engineer."

14 Look at these documents, and you will see that

15 the letters with the "ha, ha, ha" and the big bold

16 letters and all that stuff, that isn't what he was

17 writing when he was doing grievances about the MAUI and

18 the COMET and the CAPE ISABEL and the JACKSON. He was

19 writing very logical, linear thought patterns, and he

20 had -- you may disagree with whether or not he was

21 right about it, but it was good stuff, and he was

22 serious about it. And throughout, he has felt that

23 this LPB thing was fundamental.

24 And as to the grievance process, the important

25 things needed to be taken care of, and he was running

98

1 up against a stone wall. And that degree of

2 frustration has gotten to the point, with no remedy and

3 no one really listening to him, where he just is

4 tearing his hair out.

5 And I just personally think that that is

6 totally unfair to jump on a guy in that kind of a

7 condition. And that's what's happened here.

8 (A two-minute recess was taken.)

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

10 Let the record reflect that I have requested

11 that both counsel have a discussion outside the

12 presence of the respondent, over the respondent's

13 objection.

14 From a legal matter, Mr. Forgie --

15 incompetence isn't acting under the authority of

16 defense, right?

17 MR. FORGIE: That appears to be the case.

18 HON. PARLEN L. McKENNA: And incompetence is

19 the inability on the part of a person to perform

20 required duties.

21 All right. So are you suggesting that the

22 case law says that there has to be some specific act

23 or acts, or that he is just incompetent of performing

24 those duties?

25 MR. FORGIE: No. I think there has to be an

99

1 act of incompetence acting under the authority, and I

2 submit --

3 HON. PARLEN L. McKENNA: Or that could be

4 continuing.

5 MR. FORGIE: I think there needs to be some

6 showing of an actual act demonstrating an inability,

7 while acting under the authority -- this is all set

8 forth in our brief which we submitted, not only in

9 previous motions, but again today, and we elaborated a

10 bit more in analyzing the court's citation with respect

11 to other cases, there is a qualitative difference. And

12 I submit that there has been no showing of any act of

13 incompetence here, that while he was acting under the

14 authority, that's been the position, nor has there been

15 a demonstration that whatever condition he might be

16 alleged to be suffering under would, under the

17 circumstances, prohibit him from acting competently

18 while on a vessel.

19 He may be under a lot of stressors, but that

20 isn't -- that isn't a demonstration -- and he may be

21 acting out on those. But that isn't a demonstration of

22 incompetence.

23 HON. PARLEN L. McKENNA: Well, it could --

24 LT. HILL: And he has signed, again and again,

25 "I have been told by my doctors I'm unable to do my

100

1 job, I'm unable to work. I'm psychologically disabled,

2 cannot work."

3 If he cannot work by a doctor's prescription,

4 how can you say that he's able to do his duties?

5 MR. FORGIE: We are -- we have a whole series

6 of objections to such privileged information and

7 statements.

8 LT. HILL: And I think it's clear that's not

9 privileged.

10 MR. FORGIE: And if we are given an

11 opportunity to question each and every one of those and

12 how that documentation and information got

13 disseminated, we would do so.

14 But you know, I still don't know. These

15 documents are referred to, and I just don't know how

16 those things came about. To this day, despite what the

17 court previously indicated the Coast Guard was to do, I

18 still don't have an indication specifically where the

19 documents came from, where these documents were --

20 LT. HILL: I told you we got them from MEBA,

21 Matson and AMS.

22 MR. FORGIE: Under a subpoena --

23 LT. HILL: Under a subpoena.

24 MR. FORGIE: -- that was issued after this.

25 LT. HILL: I don't know if -- I can get that.

101

1 I can find that out for you as soon as I get back to

2 the office the date of this.

3 HON. PARLEN L. McKENNA: Why don't you get

4 your client. I don't want him out there.

5 Off the record.

6 (Interruption in the proceedings.)

7 HON. PARLEN L. McKENNA. Back on the record.

8 The reason that I asked that the respondent

9 not be in the room was so that I could have a

10 discussion with counsel without being interrupted.

11 While you were out of the room, we were

12 discussing the issue of incompetence, acting under the

13 authority as set forth in the regulations and the legal

14 standards; so --

15 ERIC SHINE: But again, I believe Mr. Forgie

16 has presented much of that in several motions and

17 pleadings that are in the documents that were filed

18 today, in addition to ones prior to that, as to the act

19 of incompetence. And I brought it up time and time

20 again, hey, this letter which is the statutorily

21 protected right, not only free speech, constitutional,

22 but under the Merchant Marine Act of 1936, I have the

23 right to write any legislators or authority telling

24 them what's going on in the maritime industry and ask

25 and invoke for assistance and help.

102

1 That was the letter that Lt. Tribolet used to

2 file the complaint against me, period. He even said it

3 on the record in the proceedings in San Diego. I mean,

4 there's a lot more to it than that, but --

5 MR. FORGIE: Part of our position is there

6 isn't -- I understand what the Coast Guard is saying

7 about this acting under the authority theory that,

8 well, you know, gees, every time he writes a letter and

9 gets a phone call in relation to possible proceedings,

10 that he's acting under the authority.

11 Well, under the circumstances of the other

12 stressors in his life, and under the circumstances

13 that -- the law is not entirely clear on this, let's be

14 frank. I mean, 7703 appears to require an act of

15 incompetence, and all the cases that have ruled on this

16 would tie it direct -- make a direct connection between

17 an act on board a vessel and whatever the --

18 ERIC SHINE: Anything carried on in normal

19 life. Say you murder somebody ashore. If you're found

20 guilty and you have some kind of proclivity towards

21 that, obviously, you shouldn't be sailing because you

22 might do it out there.

23 MR. FORGIE: But the fact remains, he was

24 working aboard vessels for -- 13 years? 13 years.

25 ERIC SHINE: Well, cadet school and whatever.

103

1 MR. FORGIE: 13 years.

2 And right up until the time when he left those

3 boats, right up until the time when his life,

4 therefore, fell apart, he was acting as totally

5 competent --

6 ERIC SHINE: Admirably, no pun intended.

7 MR. FORGIE: These guys didn't like him,

8 maybe, because he's a whistle-blower, and he was

9 asserting his union rights and trying to get the

10 grievance.

11 But the fact is --

12 ERIC SHINE: The canary in the coal mine, like

13 the whistle-blower analogy, if the canary is doing the

14 job and telling the miners to get the hell out of the

15 mine, there's a problem, you don't go over and beat the

16 crap out of the canary, strangle it, throw it down and

17 say, "Ah," and go back to work. You listen to the

18 canary, and you find out what's going on, take care of

19 the problem and correct it, and don't say, "Oh, the

20 canary must have some kind of a problem today."

21 MR. FORGIE: What is at stake here is a guy's

22 career, and what is at stake is his ability to make an

23 income and what is --

24 LT. HILL: There's also protecting public

25 safety.

104

1 ERIC SHINE: I said I won't use my license

2 until these proceedings are over; so how is public

3 safety at issue?

4 LT. HILL: It's at issue as long as you hold

5 the license.

6 ERIC SHINE: No, it's not. If I told the

7 court -- I'm an officer of the court. I'm considered a

8 federal employee, maritime officer, whatever, under

9 maritime service, I'm saying to this court -- and I've

10 done that. I've not -- you've not shown where I've

11 broken my word. I've said I will not use my license

12 until these proceedings are over, period. So how is it

13 at issue?

14 LT. HILL: It is.

15 ERIC SHINE: How?

16 LT. HILL: The regs say you have to be

17 mentally able to do your job.

18 ERIC SHINE: So show me on any of these

19 vessels where I have broken any law, rule or regulation

20 on the vessels themselves. Forget about even ashore.

21 Show me, when you're even saying that I was, quote,

22 unquote, "incompetent," whatever you've used in here --

23 LT. HILL: Mentally incompetent.

24 ERIC SHINE: I object to it, because a lot of

25 the stuff was backdated. I was actually working. I

105

1 showed my competence.

2 HON. PARLEN L. McKENNA: All right.

3 LT. HILL: I just want -- okay. Go ahead. I

4 won't -- I did put statements of seamen that worked on

5 board the ship with him. That was part of my statement

6 earlier. I just want the record to reflect that.

7 ERIC SHINE: And there were letters prior to

8 that where I invoke antiharassment discrimination

9 policies, ask the captain to send the letter to the

10 CFO. He goes around, recruits the chief engineer and

11 other people to write letters. And if you read the two

12 and put them side by side, you can see that what they

13 put in their letters is in response to mine. I mean,

14 details what they're saying and everything else, the

15 captain actually took my letter, went around to other

16 individuals on board the vessel and asked them to reply

17 so that he would have something to use against me.

18 LT. HILL: Conspiracy theory again.

19 ERIC SHINE: It's not. I'm telling you --

20 saying read the evidence.

21 HON. PARLEN L. McKENNA: What's the status of

22 your grievances in other matters?

23 ERIC SHINE: One, the APL JACKSON, they were

24 going to arbitrate until I lost my house. Then they

25 came back and said that, "Oh, well, because you haven't

106

1 been nice," and I'm paraphrasing, "since you were

2 fired, we're supporting what the employers say about

3 you on board the ship," when, in fact, in the

4 contracts, which is part of the shipping articles,

5 which you have authority and jurisdiction over, says

6 specifically, which is derived from statutes, also,

7 that they cannot use anything subsequent to the

8 termination to justify the termination.
9 MR. FORGIE: Time out.

10 ERIC SHINE: And we have letters from the

11 union.

12 HON. PARLEN L. McKENNA: He said "Time out."

13 He's the boss.

14 ERIC SHINE: I thought he was saying it to

15 you, your Honor.

16 HON. PARLEN L. McKENNA: I wasn't talking.

17 ERIC SHINE: I'm kidding. I'm kidding.

18 MR. FORGIE: Just as -- this is a relevant

19 comment, even though it sounds somewhat personal.

20 When that kind of information comes out of

21 Eric, it's -- he's got so much information that you

22 don't have any idea what he's talking about. And this

23 is the way that I have dealt with him. At first, I

24 thought, "Boy, that's a lot of information. That's a

25 lot of history. That's -- national defense? Where --

107

1 how do you get there from here?"

2 And it's all pudding at first. And I have

3 talked to him hour after hour after hour.

4 Clarification ensues, not necessarily as to all issues,

5 but as to a significant number. You'd be surprised

6 that -- when he says something like that, and you

7 think, "What? What did he just say," if you're patient

8 enough to hang in there and he shows you the

9 documentation, you think -- you then -- on many, many
10 issues, not all so far, you understand where it's

11 coming from. And you understand why, perhaps in that

12 process, why these people were writing those

13 declarations, why Vincent or "Sodderland" or whatever

14 these guys, didn't want to listen to him any more.

15 ERIC SHINE: I never addressed any of the

16 stuff, either.

17 MR. FORGIE: They were not patient enough to

18 listen to a man whose intelligent and has a long

19 history of these things and knows something that those

20 people just don't want to listen to.

21 And it bothers me quite a bit, and -- that

22 there are declarations that are prepared by the last

23 people he worked aboard who are employer oriented who

24 are saying things like that. This guy -- whatever the

25 declaration said, they just dismiss him as a

108

1 troublemaker or whatever or a dealer in fantasy. There

2 is truth to a lot --

3 HON. PARLEN L. McKENNA: "Fantasy."

4 MR. FORGIE: And all I'm saying is, that over

5 time, you understand that this is not easily dismissed

6 as evidence of incompetency or fantasy. It is not.

7 HON. PARLEN L. McKENNA: Is any of the

8 proceedings going to go forward in any of the

9 grievances? What about the lawsuits against the

10 employers who fired him?

11 MR. FORGIE: They're on appeal.

12 ERIC SHINE: They've injected themselves right

13 in the middle of what was going on and filed the

14 complaint against me. I lost my attorney because of

15 that. They're even trying to use that in these

16 proceedings. That's why I wanted like --

17 HON. PARLEN L. McKENNA: Was I talking to you?

18 ERIC SHINE: Oh, I thought you pointed over

19 here to our table.

20 MR. FORGIE: MEBA -- here's the status of

21 everything: The arbitration was originally -- against

22 the APL JACKSON, relating to his last job, again, I can

23 confirm that the union, who he is at odds with, has

24 said, "You were wrongfully discharged. Here's the

25 reasons why. And we are going to pay to have that case

109

1 arbitrated."

2 ERIC SHINE: And pay him.

3 MR. FORGIE: And they -- under circumstances

4 you would not expect them to do. They feel strongly

5 about it.

6 And yet as soon as they said that, APL said,

7 "Our earlier agreement to arbitrate is withdrawn, and

8 we're not going to agree to arbitration; so you can

9 talk all you want, but we're not going to show up for

10 any arbitration."

11 That's where that one stands, adding to his

12 frustration. And that has happened since my

13 involvement, and I've seen it.

14 ERIC SHINE: And I lost my house.

15 MR. FORGIE: And contemporaneously with that,

16 he lost his house.

17 There are three cases in USDC, one against

18 Matson, one against ASM, slash, APL, and against MEBA,

19 his union. The Matson and the APL cases were

20 dismissed.

21 ERIC SHINE: Summarily.

22 MR. FORGIE: On summary judgment.

23 I got the impression that his representation

24 was -- he certainly believes that it was inadequate. I

25 simply can state that the attorneys that were

110

1 representing him were not maritime attorneys. I've

2 been a maritime attorney for 20-some years. I never

3 ran across them at all.

4 ERIC SHINE: And Gene Russell's comment even

5 when he saw the complaint.

6 MR. FORGIE: And those cases are now on

7 appeal.

8 The MEBA has been stayed by Judge Matts in

9 USCD Central District pending outcome of these other

10 proceedings.

11 ERIC SHINE: And that was carried out by me.

12 HON. PARLEN L. McKENNA: What other

13 proceedings?

14 ERIC SHINE: This and --

15 MR. FORGIE: I was not privy to that.

16 ERIC SHINE: And I stepped in in pro per in

17 the last moment trying to save those cases or whatever,

18 because there was rulings on LMRA. Rather than LMRDA,

19 LMRA is a law that came out in '47 or '49, I think.

20 LMRDA, which goes to union members and right to sue,

21 and all this other stuff, gives me certain protections

22 as a union member.

23 I ran for election against these guys on

24 principle because of what they did to me or --

25 surrounding my dad and leave and all this other stuff.

111

1 And they just have been hammering on me and

2 blacklisting me.

3 And instead of looking at the core issues --

4 this has been going on in my union --

5 HON. PARLEN L. McKENNA: Wait a second.

6 Off the record.

7 (Discussion held off the record.)

8 HON. PARLEN L. McKENNA: What's going on with

9 the MEBA case?

10 ERIC SHINE: The first case that was filed was

11 Matson, and that was relating to my father and leave

12 and a bunch of other issues. Shortly thereafter --

13 HON. PARLEN L. McKENNA: He's referring to his

14 father's death.

15 ERIC SHINE: Yes, thank you, and leave

16 requiring that prior to and since.

17 And then even the issue of grieving and

18 arbitrating, you know, unjust termination and all those

19 issues, which the union was involved in; so at some

20 point, they're saying, "Oh, we don't accept grievances

21 against the union," which is wrong, as to LMRDA.

22 They're also saying, "Oh, we get to decide

23 what you get to grievance," which is wrong as per LMRDA

24 and shipping articles and everything else. They have

25 total absolute control of the process right now, and

112

1 they have for the last 15 or 20 years. And they're

2 doing stuff like this that they're doing to me for

3 anybody who speaks out or tries to file a grievance.

4 ASM was filed about a month ago. That was on the

5 COMET, which was a government ship operated by ASM,

6 where the explosion was. It's a matter of record.

7 HON. PARLEN L. McKENNA: Now, back to what I

8 was --

9 ERIC SHINE: Well, no. I was getting there.

10 And then MEBA was filed about four or five

11 months later. All the cases were related. Rather than

12 filing in one court, which I asked the attorney to do,

13 the first attorney, Steve Haney, he filed in three

14 separate arbitrations, like, well, you know, it gives

15 me four bites of the apple and allows me -- you know, I

16 don't have a problem with being in four different

17 venues; a big problem with judicial equity, big problem

18 with me being able to afford it and I'm telling him,

19 "Look, I have to help you manage the cases and stuff,

20 because they're going to retaliate against me." I'm

21 telling him in advance, "Look, you have to help me."

22 Instead of filing it as one case, he files it as three.

23 They went to move -- to hire him to do

24 arbitration. They've been back and forth on this whole

25 issue. They're trying to do like an arbitration

113

1 outside of the contractual or statutory or outside of

2 what's under the shipping articles. They're just

3 trying to do an arbitration.

4 Matson said they would arbitrate, but they

5 were trying to get like a ,000 cap, when I'm due,

6 statutorily, double wages from the date of separation,

7 per diem -- a lot of this is also contractual, which is

8 also statutorily protected under the Ocean Shipping

9 Perform Act of 1984 and other laws.

10 They're playing this whole game trying to deny

11 me access to any open venue or jurisdiction where I may

12 be heard. And that's why -- even like getting here,

13 I'm trying to get it on the record, saying what's going

14 on, because this is the first opportunity, through all

15 of this, that I've had a chance to be heard on any

16 issue, period.

17 HON. PARLEN L. McKENNA: Well, I'm just asking

18 you about what's the status of the MEBA.

19 ERIC SHINE: Right. They filed --

20 MR. FORGIE: Stay.

21 ERIC SHINE: Everybody filed them. There was

22 even a cross-complaint from ASM against the union. The

23 union complaint was consolidated with ASM in Judge

24 Matts' court.

25 Matson, Judge Morrow, said, "Oh, they're not

114

1 related at all." Judge Matts said, "We're going to

2 prove and show the DFR first and foremost."

3 HON. PARLEN L. McKENNA: DFR?

4 ERIC SHINE: Duty of fair representation by

5 the union.

6 His belief under LMRA, which has been, you

7 know, superseded by LMRDA, that you have to prove and

8 show a failure of duty of fair representation by the

9 union first before you can sue the employer. But the

10 right to sue is protected under LMRDA and shipping. I

11 mean, there's all kinds of laws and statutes.

12 And he dismissed, because I'm telling my

13 attorneys -- finally, it was Haney or Warner, whoever

14 is not an admiralty lawyer, doesn't know collective

15 bargaining, should have never taken the case on, I'm

16 hiring these guys because the union is denying me

17 representation, they go ahead and fail to show at

18 summary judgment the failure of the duty of fair

19 representation by the union -- I have 35 boxes. It's

20 even a matter of record on the transcripts where Warner

21 said stuff about this. They dismissed the ASM case,

22 saying that, "Well, you --"

23 HON. PARLEN L. McKENNA: With prejudice?

24 ERIC SHINE: No, without prejudice.

25 HON. PARLEN L. McKENNA: All right.

115

1 ERIC SHINE: Then -- and the MEBA case is

2 still valid. The judge has said he has jurisdiction;

3 so it creates a problem.

4 HON. PARLEN L. McKENNA: All right. So he

5 said he has jurisdiction. And he is deferring ruling

6 on it until the outcome of this case?

7 ERIC SHINE: And that's why even an issue of

8 medical competence -- because I don't want them to come

9 and say you're medically or mentally incompetent to

10 stand trial, and then I'm in purgatory because I can't

11 even get into U.S. District Court now, because you

12 ruled on an issue of mental or medical competence,

13 which they don't even want to go to an act of

14 competence or address anything going on with the

15 shipping companies or employers and union. They just

16 want to say, "Oh, forget about it. We're looking at

17 the end result. We don't care."

18 He even said this out in the hall, "We don't

19 care what brought you to this point. We're ignoring

20 all this. We just care about how you are right now."

21 LT. HILL: What I said was we don't care what

22 caused his mental illness. All we're concerned with

23 is -- whether he hit his head that caused it, fell down

24 that caused it, took too much drugs one day, whatever,

25 whatever may have caused it --

116

1 HON. PARLEN L. McKENNA: As prescription

2 drugs.

3 LT. HILL: Yeah. I'm not saying you're doing

4 drugs. I'm just saying for this --

5 ERIC SHINE: But he even said "mentally ill"

6 out in the hallway where people are walking by.

7 LT. HILL: Well, we talked after that, and I

8 was quiet.

9 Like I said, we don't care -- for the purposes

10 of this hearing, we just said we don't care what caused

11 it, a bump on the head, whatever, are you mentally able

12 to work on a ship.

13 ERIC SHINE: And I've not been proven --

14 HON. PARLEN L. McKENNA: Do you want to go

15 outside again?

16 LT. HILL: We have received enough information

17 from the people that you've worked with, from records

18 that you have released to in other cases which are

19 contemporaneous with your time on board those ships

20 that raises an issue in our mind, that for the public

21 safety, you should not have a Coast Guard license any

22 more.

23 ERIC SHINE: Any more. And see, their intent,

24 and Tribolet's intent, is that I never --

25 HON. PARLEN L. McKENNA: The only sanction for

117

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