Martiallaw 911

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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

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1 incompetence is revocation.

2 ERIC SHINE: Right. But I haven't been

3 incompetent. I'm saying here, "Look. There's issues

4 of whistle blower, national security --"

5 LT. HILL: That has nothing to do --

6 ERIC SHINE: Yes, it does.

7 LT. HILL: -- with whether you are mentally --

8 ERIC SHINE: The U.S. government already filed

9 a complaint. You guys own the SS COMET, period,

10 whether you realize or not the ramifications --

11 HON. PARLEN L. McKENNA: Mr. Forgie, do you

12 want to escort your client out of the courtroom?

13 Not you, Mr. Forgie.

14 (A ten-minute recess was taken.)

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

16 MR. FORGIE: I think I just would like to make

17 a record with respect to the evidence that's been

18 presented and then let the court rule.

19 HON. PARLEN L. McKENNA: All right.

20 ERIC SHINE: Rule on?

21 MR. FORGIE: The quality, nature of the good

22 cause -- the alleged good cause showing justifying the

23 psychological exam.

24 ERIC SHINE: Can I --

25 MR. FORGIE: Yes.

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1 ERIC SHINE: Excuse me, your Honor.

2 MR. FORGIE: Okay. It is and remains our

3 opinion that the nature of the prima facie showing here

4 today is inadequate and deprives us of due process,

5 given that we have been confronted with, and the court

6 has been presented with, a variety of allegations,

7 statements, clear hearsay. I know about the rules of

8 evidence.

9 Having said that, documents, the sources of

10 which have not been disclosed, the particular contents

11 of which have not been presented to this court,

12 statements like the Timothy McVeigh thing have been

13 taken out of context extremely so. There hasn't been a

14 single document presented that would support the prima

15 facie case. It has been our contention that that

16 deprives him of due process, given two things; number

17 one, our inability to cross-examine witnesses and

18 examine evidence; and number two, that we have not had

19 an opportunity to cross-examine anyone regarding these

20 things, despite our request that that be done.

21 Secondarily, but almost as important, is the

22 fact that it is our contention that an act of

23 incompetence needs to be demonstrated in conjunction

24 with or prior to this intrusive proposed request for

25 submission to a psychiatrist for an examination. And I

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1 think that that should be done at the time of trial,

2 much the same as the case which we cited in one of our

3 motions. And that was when the actual fact findings

4 were made at the time of hearing. And then part of the

5 factual findings was that there was a sufficient cause

6 to order him to a psychological exam. I'm sorry. I've

7 forgotten the case name. It's cited in one of our

8 motions. I see these things as inextricably bound up.

9 I think the act of incompetence under 7703 has to be

10 demonstrated prior to this mental examination.

11 From a pragmatic standpoint, there is no

12 problem with any delay, because there certainly is no

13 threat to public safety in this situation, because

14 Mr. Shine has indicated to the court that he is not

15 going to use his license until this thing is resolved.

16 Now, in response to the statements of Lt. Hill

17 regarding his prima facie case, I will touch on each of

18 them briefly. I heard Lt. Hill admit that there is a

19 Federal psychotherapist/patient privilege now

20 recognized in Federal law.

21 We are asserting that, and have been

22 asserting --

23 HON. PARLEN L. McKENNA: You're not saying

24 that he stipulated to that, are you?

25 MR. FORGIE: I heard him admit that there was

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1 such a psychotherapist/patient privilege in Federal law

2 and essentially concede the position. That's what I

3 heard, and that's what I maintain.

4 LT. HILL: I admit there is a Federal Court

5 psychotherapist/patient privilege. Whether it

6 applies --

7 HON. PARLEN L. McKENNA: No. There can be.

8 LT. HILL: There can be.

9 HON. PARLEN L. McKENNA: It's not that there

10 is. There can be.

11 LT. HILL: Right.

12 HON. PARLEN L. McKENNA: And it is up to the

13 court --

14 LT. HILL: That is correct.

15 HON. PARLEN L. McKENNA: -- to recognize that

16 or not.

17 Do you agree with that, Mr. Forgie?

18 MR. FORGIE: No; no. I think the privilege is

19 so important that I think it negates the CFR section

20 which has been thrown around here that there is no

21 psychotherapist/patient privilege. I think there is,

22 and I think it has to be recognized.

23 And I think that the Coast Guard has to come

24 up with some other means, other than the respondent's

25 statements to his own psychotherapist, whether

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1 treatment or otherwise, that they have to try to

2 demonstrate incompetency, an act of incompetency, in

3 some other way other than using these own records. And

4 the psychotherapist/patient privilege is something that

5 is expanding, not --
6 HON. PARLEN L. McKENNA: I understand what

7 you're saying, and I specifically and unequivocally

8 disagree with you as a matter of law and will issue an

9 order detailing my basis under law for that ruling.

10 MR. FORGIE: Right. I understand that that's

11 the court's feeling.

12 HON. PARLEN L. McKENNA: It's not my feeling.

13 It's the law.

14 MR. FORGIE: And conclusion, to which I

15 respectfully disagree.

16 ERIC SHINE: Refers to 5.67, your Honor,

17 specifically?

18 HON. PARLEN L. McKENNA: It's --

19 MR. FORGIE: Moving on, it's a matter of

20 record. It's a matter of record.

21 With respect to the second issue that was

22 raised, the supposed waiver, I have still not been

23 presented, nor has the court been presented, with any

24 evidence as to how the documents were obtained from

25 ASM, Matson and MEBA; that is, that there were supposed

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1 authorizations for the release of records. We don't

2 have those authorizations. There is a waiver being

3 asserted based on those authorizations. In fact,

4 waivers of privileges are to be narrowly construed in

5 anybody's book.

6 HON. PARLEN L. McKENNA: All right. On that

7 point --

8 LT. HILL: I'll just --

9 HON. PARLEN L. McKENNA: -- you are directed

10 to file a pleading with your points and authorities as

11 to whether there was a waiver, how you obtained them

12 and what the law is on the subject.

13 LT. HILL: Right. The only thing I would say

14 is that you just said that there is no

15 physician/patient privilege; so the issue of waiver

16 wouldn't even apply in this case.

17 So I've already told him that we received them

18 by subpoena. We received -- I can give him the date.

19 That's the only thing I don't know. We -- Chris

20 Tribolet sent a subpoena on those when he found out

21 about the cases that Eric Shine sued them. He asked

22 them for all records relating to those.

23 HON. PARLEN L. McKENNA: I understand, and I

24 want that by way of paper.

25 LT. HILL: All right. I'll do that by paper,

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1 no problem.

2 MR. FORGIE: Now, I also heard Lt. Hill admit

3 there's a right of privacy, and he indicated that we,

4 the Coast Guard, are not -- certainly not going to

5 disseminate this information anywhere else. Well, in

6 that, I find an acknowledgement that waivers are very

7 limited. And if -- I think it's unfair to simply say,

8 "Yeah, the waiver was good to let the documents come to

9 us, but we're not going to let it anywhere else."

10 There's an implicit acknowledgement of the fact that a

11 right to privacy has got to stop the outflow of the

12 records. And I think the outflow should have stopped

13 sometime back when the subpoena was issued without

14 notice to Mr. Shine, without an ability to object at

15 that time. And that was what was done.

16 According to Lt. Hill, after the complaint was

17 filed in this thing, subpoenas were simply sent out.

18 And that is not consistent with a person's --

19 HON. PARLEN L. McKENNA: That's your position.

20 MR. FORGIE: Okay. Now, the documents -- and

21 I hope I wrote most of them down. I don't have them in

22 front of me; so I can't address it.

23 Depression -- the first document that was

24 mentioned was the e-mail of 12-7-02. Depression is not

25 a psychological disability that would amount to an

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1 incompetence based on mental condition. Many people

2 are depressed. From what I understand, it is a

3 fleeting situation. And we have no psychological

4 testimony --

5 HON. PARLEN L. McKENNA: You're saying that --

6 MR. FORGIE: It may be.

7 HON. PARLEN L. McKENNA: -- it's a pleading?

8 MR. FORGIE: No; fleeting.

9 HON. PARLEN L. McKENNA: Fleeting.

10 MR. FORGIE: A fleeting condition. And we

11 don't have any psychological testimony one way or the

12 other here now to suggest --

13 HON. PARLEN L. McKENNA: That's not the

14 standard for today's --

15 MR. FORGIE: And I assert that it is. A

16 hearing on that should be more drawn out and with an

17 ability to cross-examine.

18 Again, Dr. Kulik's records were mentioned. I

19 question -- and the court has addressed that and has

20 indicated that the Coast Guard is to let us know where

21 they got those.

22 Characterizing an e-mail as bizarre is --

23 Mr. Shine has reminded me, as we have addressed in one

24 of our motions that's still pending, is that the LMRDA

25 protects speech that is related to -- of this type of

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1 speech, First Amendment rights, are protected and they

2 cannot be used against him in the manner in which they

3 are being used now, much of what his correspondence was

4 generated in relation to Federal statute according him

5 the right to make such statements. And they should not

6 be used against him. It's protected speech. But that

7 is a subject of one of our motions.

8 These two or three individuals that were

9 mentioned as declaring that they were not happy with

10 Mr. Shine's conduct aboard a vessel and didn't want to

11 sail with him any more and they perceived him to be

12 dangerous at sea, there is no -- there are no facts to

13 support this contention that he's a danger at sea other

14 than the fact that they just didn't want to be around

15 him. And I refer the court to the arbitration rulings

16 which we have submitted today, which indicate that that

17 is not even a cause for discharge, much less

18 revocation. And they're really quite specific on that.

19 The January '02 captain of the APL JACKSON

20 indicated that, according to Lt. Hill, that Mr. Shine

21 was insubordinate. Indeed, the Coast Guard

22 investigated that and found no basis for that

23 contention. The Coast Guard has acknowledged in

24 e-mails that have been submitted to the court that

25 there was no such insubordination and there was no

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1 misconduct, and they found no grounds to proceed

2 against him in relation to anything having to do with

3 the APL JACKSON. That's beyond dispute; and yet now,

4 it's being thrown back at him.

5 Again, the claims they've asserted, these --

6 HON. PARLEN L. McKENNA: Do you have much

7 more?

8 MR. FORGIE: Two, three hours.

9 HON. PARLEN L. McKENNA: Oh, I'm sure we have

10 a multitude of hours, but --

11 MR. FORGIE: No. I have --

12 HON. PARLEN L. McKENNA: -- the question is

13 that we were going to recess at 4:00.

14 MR. FORGIE: No. We can wrap this up. I have

15 another maybe ten minutes.

16 HON. PARLEN L. McKENNA: We're going to resume

17 again in the morning.

18 MR. FORGIE: Can we go off the record?

19 HON. PARLEN L. McKENNA: Off the record.

20 (Discussion held off the record.)

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

22 During our off-the-record discussion,

23 Mr. Shine asked the question of whether we were going

24 to continue or that he could have the opportunity to

25 have a settlement discussion as supposedly provided for

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1 in the order which serves as the basis for us being

2 here today.

3 I have thought about that issue throughout the

4 day; and indeed, we have, at various times, attempted

5 to try and resolve this matter short of a hearing. And

6 in the various avenues which were proffered by the

7 various parties and by myself, there was no meeting of

8 the mind; and therefore, it is my opinion that further

9 discussions on settlement of this matter would not be

10 productive.

11 ERIC SHINE: I object, your Honor.

12 HON. PARLEN L. McKENNA: Objection duly noted.

13 You have the opportunity where your counsel

14 can talk to the Coast Guard outside of my presence in

15 an attempt to resolve this matter.

16 Mr. Forgie, in some of the myriad of

17 objections that Mr. Shine has raised today, one of them

18 I took significant offense to was the issue of the fact

19 that there was some impropriety by the Coast Guard and

20 you having discussions with the judge in conference

21 calls.

22 And I ask you, for the record, is it not a

23 fact that all discussions that occurred between the

24 parties and the judge were standard operating procedure

25 as conducted in most all courts that you've been in

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1 throughout your vast career?

2 MR. FORGIE: I cannot answer that question

3 phrased so broadly, and --

4 HON. PARLEN L. McKENNA: Is there any

5 impropriety that you're asserting?

6 MR. FORGIE: Generally speaking, conference

7 calls are -- I better not say anything.

8 HON. PARLEN L. McKENNA: No. You have a duty

9 to say something, and I am ordering you to say

10 something right now.

11 MR. FORGIE: Generally speaking, conference

12 calls off the record are not highly unusual, and --

13 HON. PARLEN L. McKENNA: They are ordinary.

14 MR. FORGIE: I'm struggling --

15 HON. PARLEN L. McKENNA: They are ordinary; is

16 that not correct?

17 MR. FORGIE: You know, in all honesty, I don't

18 know in terms of the ALJ experience. I have done it

19 many times in civil proceedings. I've had

20 many --

21 HON. PARLEN L. McKENNA: Yes.

22 MR. FORGIE: But that's civil proceedings. I

23 have no opinion about it. I have no real experience,

24 in terms of ALJ proceedings. I really do not. I have

25 done -- for the record, I have done some longshore work

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1 years ago. I had no such those kinds of conferences,

2 but that's a different system.

3 HON. PARLEN L. McKENNA: All right. Let me

4 ask you another question.

5 MR. FORGIE: I have no experience in this.

6 HON. PARLEN L. McKENNA: Let me ask you

7 another question.

8 At any time when a conference call occurred,

9 did you voice an objection to me that you did not want

10 it to occur without your client being present?

11 MR. FORGIE: I have already answered that

12 question today, and I said no.

13 HON. PARLEN L. McKENNA: All right.

14 ERIC SHINE: Your Honor, may I speak?

15 HON. PARLEN L. McKENNA: You may.
16 ERIC SHINE: As I have become aware of several

17 of these conversations, I've spoken to Mr. Forgie about

18 that and stressed the issue that everything should and

19 must be on the record when the court and the two

20 parties meet, as per the APA. I cannot effectively

21 participate in my own defense if I'm getting stuff

22 secondhand. Even from what you say, he says what you

23 say, it's not clear. When I sit here and I listen to

24 you, and I sit here and listen to Lt. Hill, there's a

25 big difference from getting it secondhand from

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1 Mr. Forgie after -- and it's my understanding, and

2 Mr. Forgie can set the record straight in this regard,

3 that he had made several calls to whomever, whether it

4 was your Honor or, you know, Cindy Roberson, or

5 whatever individual, to find out more information to

6 move the processes along. It was not intended to be a,

7 quote, unquote "formal" hearing, where an order would

8 be issued, which, in effect, it became somehow by

9 default through -- I -- you know, whether not following

10 the regulations strictly to protect my interest, which

11 I'm trying to reassert and reaffirm here, rather than

12 having the record corrected against me.

13 Again, I have brought up from the very

14 beginning my rights of due process. I would think that

15 the court would, at some point, make sure, when they

16 ask -- instead of putting it on Mr. Forgie, that the

17 court would say, "Mr. Forgie, have you noticed -- this

18 was calendared. This was set for a certain date. Did

19 you notify your client that --" you know, because I

20 don't -- I was never told that there was going to be a

21 hearing on this issue of settlement conference. I

22 would have said, "I want to partake. I will be there.

23 I will make arrangements."

24 HON. PARLEN L. McKENNA: Mr. Shine, you are

25 here.

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1 ERIC SHINE: But -- no. That's what I'm

2 saying, that when this was set up through a phone -- I

3 don't know if it was an ex parte motion or whatever,

4 Mr. Forgie made a phone call. It was an unofficial

5 call to one of the parties. Then it became all -- the

6 judge and the opposition. I've asked to meet with

7 Lt. Hill. I asked to meet with Lt. Tribolet well in

8 advance of this.

9 Today, what I understood, and what I had asked
10 Mr. Forgie to call about, was to set up some type of

11 ADR, which is very specifically outlined, and get the

12 lieutenant to stipulate to that. That's what I asked,

13 even as far as rather than setting the record straight

14 as to not place blame anywhere, I'm trying to correct

15 the problem so that I don't pay for it in the end.

16 And I feel strongly that that's where this is

17 headed even now, that rather than correct the problem

18 and set this aside for September 23rd, to have, you

19 know, Lt. Hill and -- no matter what he wants to say

20 now did say, in response to ADR, that we could talk

21 about it after this -- the issue of the prima facie

22 showing or whatever or the medical stuff. All of a

23 sudden, the whole issue of settlement conference became

24 moot. We're no longer having a settlement conference.

25 We're striving forward with the issue of, quote,

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1 unquote, "medical competence or incompetence" without

2 them even showing a prima facie --

3 HON. PARLEN L. McKENNA: That's what your

4 counsel requested that we do here today.

5 ERIC SHINE: No. Even in the very beginning,

6 I tried to say, "No, stop." And even with my counsel,

7 I've been trying to say, "at some point, we should end

8 these proceedings and defer to September 23rd when they

9 show their prima facie showing of --"

10 HON. PARLEN L. McKENNA: It's not going to

11 happen.

12 ERIC SHINE: Well, again, at some point, it's

13 denying me due process, because I wasn't --

14 HON. PARLEN L. McKENNA: It's not denying you

15 due process.

16 ERIC SHINE: I wasn't properly noticed.

17 HON. PARLEN L. McKENNA: If you have a

18 problem, Mr. Shine, that was an issue that your

19 pleadings and your counsel has stated numerous times

20 that you wanted the Coast Guard, separate and apart

21 from the medicals, to show that there was a basis under

22 1313 to have --

23 ERIC SHINE: After --

24 HON. PARLEN L. McKENNA -- a -- no. To have a

25 medical evaluation ordered.

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1 MR. FORGIE: After -- your Honor.

2 HON. PARLEN L. McKENNA: Now --

3 ERIC SHINE: No.

4 HON. PARLEN L. McKENNA: Just be quiet.

5 ERIC SHINE: Please.

6 HON. PARLEN L. McKENNA: No. All right. And

7 what I am going to do is I am going to make a ruling on

8 that issue, which is not required under the law 1313.

9 ERIC SHINE: But he hasn't even finished his

10 defense or rebuttal to what the arguments are. We're

11 deferring to tomorrow.

12 HON. PARLEN L. McKENNA: That's what we're

13 going to do, but I want to set forth what the standard

14 is.

15 LT. HILL: Your Honor, I wouldn't have a

16 problem extending a couple minutes to let Mr. Forgie

17 finish his rebuttal.

18 ERIC SHINE: It's going to go longer than

19 that, and I think we agreed to break --

20 LT. HILL: I think ten minutes is fine. We

21 can take another break.

22 ERIC SHINE: Why don't you consider my

23 position.

24 HON. PARLEN L. McKENNA: All right. Excuse

25 me. Section 20.1313, in any proceeding in which the

134

1 physical or mental condition of the respondent is

2 relevant. Clearly, in an incompetency charge, it's

3 relevant.

4 ERIC SHINE: But that's after they've showed

5 where I've been incompetent. You're putting the cart

6 before the horse.

7 HON. PARLEN L. McKENNA: I am asking you to be

8 quiet. You are completely out of order, and you have

9 been so on numerous occasions, and I am tired of your

10 persistent attitude.

11 ERIC SHINE: With all due respect, your Honor,

12 put yourself in my position.

13 HON. PARLEN L. McKENNA: I'm asking you to be

14 quiet. If you don't be quiet, what we're going to do

15 is we're going to escort you out of the hearing room.

16 ERIC SHINE: If you want, your Honor, I'll

17 leave now so that you can proceed and you can have it

18 on the record. And I'll step outside.

19 HON. PARLEN L. McKENNA: Any examination

20 ordered by the judge is conducted at Federal expense by

21 a physician designated by the judge. If the respondent

22 fails or refuses to undergo any such examination, the

23 failure or refusal receives due weight and may be

24 sufficient for the judge to infer that the results

25 would have been adverse to the respondent.

135

1 46 CFR Section 5.67, for purposes of these

2 proceedings, the physician/patient privilege does not

3 exist between a physician and a respondent. There is a

4 Federal register final rule, 50 Fed Reg 32179,

5 August 9th, 1985, which bears consideration as to the

6 issue raised herein.

7 All right. We will break at this time.

8 Tomorrow morning, you will conclude your remarks, and

9 then I will make some determinations. I would plan on

10 handling numerous motions dealing with them over the

11 next day or two.

12 MR. FORGIE: Any guidance as to which ones

13 those are offhand?

14 HON. PARLEN L. McKENNA: Well, I am open to a

15 resolution of the physician issue. We have a number of

16 motions that you have filed that need to be resolved.

17 And I have a list of all those, and we can go over

18 those in the morning.

19 What time --

20 MR. FORGIE: You know, 9:00 o'clock is fine.

21 I cannot stay past tomorrow. I have commitments;

22 so --

23 HON. PARLEN L. McKENNA: All right.

24 MR. FORGIE: I just can't.

25 HON. PARLEN L. McKENNA: Okay. We'll do the

136

1 rest of it by paper. I'm going to need a little time

2 to go over some of this in the morning; so 9:30.

3 Thank you.

4 (Proceedings adjourned at 4:25 p.m.)

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