by ERIC SHINE
Tuesday, Nov. 13, 2007 at 3:11 AM
martiallaw911@socal.rr.com 310-858-6643
MILITARY TRIBUNALS ALREADY BEING USED IN AMERICA ON AMERICAN CITIZENS/ CIVILIANS
JUST AS HOMELAND SECURITY.......
1
2
3 UNITED STATES OF AMERICA
4 DEPARTMENT OF HOMELAND SECURITY
5 U.S. DEPARTMENT OF TRANSPORTATION
6 UNITED STATES COAST GUARD
7
8 HON. PARLEN L. McKENNA, JUDGE
9
10
11 UNITED STATES COAST GUARD, )
)
12 Complainant, )
vs. ) No. CG S&R 03-0166
13 ) USCG Case No. MISLE
ERIC NORMAN SHINE, ) 1671475
14 )
Defendants. )
15 )
16
17 ROUGH DRAFT OF
18 VOLUME ##
19 REPORTER'S TRANSCRIPT RE PROCEEDINGS
20 TUESDAY, OCTOBER 23, 2007
21
22
23
24 REPORTED BY: Judy M. Skidmore, CSR No. 8479
25
UNEDITED, UNCERTIFIED TRANSCRIPT - FOR ATTORNEY'S EYES ONLY
1 TUESDAY, OCTOBER 23, 2007, LONG BEACH, CALIFORNIA
2 9:54 A.M.
3 * * *
4
5 THE COURT: All right. We're now on the
6 record in the matter of Coast Guard versus Eric Norman
7 Shine. This is Coast Guard Case No. 1671475, CG
8 03-0166. And this is based on a complaint dated
9 March 6, 2003, which I will go into in just a moment.
10 But for the record, present at this particular
11 hearing -- and this is a prehearing conference, the
12 purpose of which is to take evidence to rule on certain
13 motions that are before the court.
14 Present at the hearing is the respondent, Eric
15 Norman Shine. Also present at the hearing is the Coast
16 Guard investigating officer, Lieutenant Commander
17 Christopher A. Tribolet, T-r-i-b-o-l-e-t, U.S. Coast
18 Guard, and his assistant, Lieutenant JG Yancee,
19 Y-a-n-c-e-e, McLemore, M-c capital L-e-m-o-r-e.
20 I'm Judge Walter J. Brudzinski. Also present in the
21 hearing room to assist me is Mr. J.C. Johns, attorney
22 advisor, office of chief administrative law judge.
23 This matter is convened as an in-person
24 prehearing conference by my order issued
25 October 11th, 2007, in which I said we'll have a
1
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1 prehearing conference in the Glenn Anderson Federal
2 Building, 501 West Ocean Boulevard, Room 5150, Long
3 Beach, California.
4 The issues that I'll be taking up to hear oral
5 argument on are whether the ALJ should be disqualified,
6 whether the proceedings ought to be stayed pending
7 appeal, whether a medical examination of respondent
8 should be ordered, whether previous ordered issues
9 prior to remand are still valid, whether the incumbent
10 investigating officer should be disqualified and
11 whether telephonic testimony may be taken at any
12 subsequent hearing.
13 MR. SHINE: Your Honor?
14 THE COURT: Just a minute.
15 MR. SHINE: I --
16 THE COURT: Just a second.
17 MR. SHINE: I just wanted to object to that so
18 that we could get into that a little bit before deeper
19 before proceeding into any of the individual items when
20 you take it up.
21 THE COURT: Well, you'll have plenty of time
22 to object.
23 MR. SHINE: Yes, your Honor.
24 THE COURT: I just want to get through the
25 initial proceedings here.
2
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1 MR. SHINE: Yes, sir.
2 THE COURT: You'll have all the time that you
3 need.
4 I mentioned the complaint, the -- just to
5 amplify the record, the complaint issued in March of
6 2003 identifies the respondent and identifies his
7 address at the time. It gives the number of his
8 merchant mariner's document as well as the number of
9 his license.
10 It alleges jurisdictional allegations, that
11 between March the 6th, 2001 and March -- and June the
12 11th, 2001, by serving as third engineer and/or second
13 engineer aboard the vessel MAUI, M-A-U-I, as required
14 by law or regulation, and between December 2nd, 2001
15 and January 5th, 2002, by serving as third engineer
16 aboard the vessel PRESIDENT JACKSON as required by law
17 or regulation, and from January 5th, 2002, until
18 present, while engaged in matters concerning his
19 license in the merchant marine.
20 The factual allegations cite incompetence,
21 that, number one, the Coast Guard alleges respondent is
22 medically incompetent; number two, due to a major
23 depressive disorder or other psychiatric condition, the
24 exact nature of which to be determined through the
25 hearing process.
3
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1 In summary, the respondent was served
2 a -- filed a -- had counsel, filed his answer. And
3 after several months have gone by of extensive motion
4 practice, the administrative law judge who had been
5 previously assigned granted the Coast Guard's motion
6 for summary decision.
7 MR. SHINE: Contingent motion.
8 THE COURT: Which is pretty much like a motion
9 for summary judgment, finding that there were no
10 material factual issues in dispute.
11 Subsequent to that, a couple years later, the
12 vice commandant of the Coast Guard on
13 December 27th, 2006 vacated and remanded the previous
14 judge's order. The previous judge had found that the
15 charges were proven that there were no material issues
16 of -- material factual issues in dispute and that the
17 order of revocation would be appropriate.
18 As I mentioned, the respondent appealed from
19 that. And on December 27th of 2006, the vice admiral
20 vacated and remanded that decision.
21 This case started to develop during the spring
22 of 2007 after the matter was reassigned to me, Judge
23 Brudzinski. It was reassigned to me, because the
24 previous judge had disqualified himself from any
25 further proceedings connected with this respondent.
4
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1 As a result, the office of chief
2 administrative law judge reassigned the matter to me
3 pursuant to the order of remand. And in summary
4 fashion, that is the history of the case.
5 Since the matter had been reassigned to me,
6 there had been extensive motion practice. I had made
7 various rulings on various motions, to the extent that
8 I could based upon what was submitted in the filings.
9 And based upon a previous telephonic prehearing
10 conference in September of this year, and pursuant to
11 the respondent's request, I ordered that there be an
12 in-person hearing conference here in Long Beach/Los
13 Angeles area to determine the issues that I mentioned
14 at the beginning of this hearing.
15 Those are the issues, that at least as of that
16 date, were still outstanding and that needed to be
17 resolved.
18 MR. SHINE: Your Honor --
19 THE COURT: Mr. Shine?
20 MR. SHINE: -- if I may briefly?
21 That is just a skeletal outline. There's a
22 lot of holes in that that need to be brought forth.
23 And I think that we should discuss them today, both
24 procedural --
25 THE COURT: Sir, did you have something?
5
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1 UNKNOWN AUDIENCE MEMBER: I couldn't quite
2 hear because you were speaking in that direction.
3 THE COURT: Okay. Mr. Shine, yeah, that was a
4 summary of the case, and with an emphasis on the word
5 "summary."
6 I did not want to go on the record and recite
7 each and every piece of paper that had been filed. If
8 I did that, it would take us just too long. That
9 information is already in the record, and it's not
10 necessary to recite that again for the purpose of this
11 in-person hearing.
12 MR. SHINE: But I think there are some issues
13 that are procedural that even the April 17th
14 teleconference that I filed a motion in regards to and
15 you ordered the Coast Guard to contact your offices,
16 they did not respond or oppose my own filing.
17 There was another individual, Lieutenant
18 Parham, who was in charge of the case at that time.
19 And since then, Lieutenant Commander -- or previously
20 Lieutenant Tribolet, who was the charging officer, has
21 stepped into to take over the case in a, quote,
22 unquote, "rush to judgment" to some degree, filing not
23 only a notice of appearance without -- this is the
24 first appearance that he's actually made. This is the
25 first appearance that you've made, your Honor.
6
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1 I believe that the issue of an actual
2 in-person appearance is necessary before so that, you
3 know, people can be identified, the issues of venue and
4 jurisdiction, conflicts of interest and other matters
5 can be first raised and addressed before proceeding on
6 any matters. And that's what I've been trying to do
7 since the case was assigned to you.
8 And I did file a motion April 17th, which
9 requested an in-person oral due process hearing similar
10 to what we're having today. And there's been a lot of
11 changes that have happened since April 17th, and some
12 of the orders, I believe, that have been issued or
13 considered have been taken out of order, and to some
14 degree, intentionally to favor the Coast Guard.
15 THE COURT: Okay. Mr. Shine, what we're going
16 to do today is -- pursuant to the order that I issued
17 on October the 11th, we're going to take up the
18 issue -- the subject matter as I have indicated. We're
19 going to start out with whether or not the ALJ should
20 be disqualified.
21 MR. SHINE: What I did bring up, your Honor,
22 and I would like to object to that, there are other
23 issues that preempt that, jurisdictional questions that
24 must come before that, that we have officers in uniform
25 almost as if it's a JAG proceeding. They are members
7
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1 of the JAG corps. I know Lieutenant Commander Tribolet
2 is. This gets into jurisdictional questions of the
3 military adjudicating civilian affairs.
4 The question of my status on these two vessels
5 that are cited in the record or in the charge sheet,
6 the APL JACKSON and the MAUI, I was a naval officer, a
7 graduate of Kings Point. My time in service on board
8 these vessels counts for my time in service as a naval
9 officer; so it raises the question of UCMJ, Uniform
10 Code of Military Justice, whether it's applicable or
11 not. I am a civilian right now, or at least what the
12 Coast Guard has alleged or charged or put forth in the
13 record.
14 But then on the other hand, they've also put
15 forth that I am and remain to be acting under my
16 license as a federal officer. Several months after the
17 charges were brought against me on March 6 of 2003, in
18 April, I was discharged as a naval officer allegedly.
19 There is no discharge from the Navy that anyone can get
20 their hand on; so it raises questions of venue and
21 jurisdiction, because the military is not supposed to
22 have any control over civilian affairs.
23 MR. TRIBOLET: Your Honor, if I may, I'll
24 provide the respondent with a copy of his discharge.
25 THE COURT: Okay.
8
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1 MR. SHINE: So then that makes it even more
2 clear that I am supposedly or allegedly a civilian, or
3 they're backdating and coming in where you have a U.S.
4 Coast Guard officer -- and if you go to their website
5 and if you go the JAG -- their own -- it's the
6 highlights of Coast Guard legal practice, Judge
7 Advocate General -- thank you.
8 That's not a discharge, and I won't accept
9 that. That's not a proper discharge. That is not a
10 proper discharge.
11 THE COURT: Mr. Shine --
12 MR. SHINE: I'm a naval officer.
13 THE COURT: Mr. Shine --
14 MR. SHINE: He's not a naval officer.
15 THE COURT: Mr. Shine, let's make one thing
16 perfectly clear before you go on.
17 MR. SHINE: I don't accept a discharge from
18 the Coast Guard for the Navy.
19 THE COURT: I'm making one thing perfectly
20 clear.
21 This is a court proceeding. And if you read
22 my convening order for this hearing, you will note that
23 it says note that the judge has authority to regulate
24 the course of the hearing, to call and question
25 witnesses, exclude any person from the hearing or
9
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1 conference for disrespect or disorderly or rebellious
2 conduct.
3 MR. SHINE: I gave him back the discharge,
4 your Honor.
5 THE COURT: And I intend to carry that out,
6 Mr. Shine. And through these proceedings, I'm going to
7 give you warnings.
8 Do you understand?
9 MR. SHINE: Am I being warned right now, your
10 Honor?
11 THE COURT: You're being warned.
12 MR. SHINE: And what have I done? If you
13 could make that a matter of record, I --
14 THE COURT: You're being disruptive, and
15 you're being disorderly.
16 MR. SHINE: And could you cite for the record
17 how I was being disruptive?
18 THE COURT: Mr. Shine --
19 MR. SHINE: I'm asking, your Honor.
20 THE COURT: No; no. I think it's perfectly
21 obvious what you are doing.
22 MR. SHINE: If you're going to --
23 THE COURT: You're not going to argue with the
24 court.
25 MR. SHINE: If you're going to cite me, your
10
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1 Honor, you're supposed to specify what the citation is
2 for.
3 THE COURT: No, I don't.
4 MR. SHINE: Then you're rule-making.
5 THE COURT: That's correct. I'm rule-making.
6 MR. SHINE: And that's disallowed.
7 THE COURT: And they are --
8 MR. SHINE: That's disallowed in the
9 regulations.
10 THE COURT: No. They are allowed, Mr. Shine.
11 MR. SHINE: No, it's not.
12 THE COURT: Mr. Shine, don't -- do you want a
13 hearing?
14 MR. SHINE: Yes, your Honor.
15 THE COURT: Do you want a hearing?
16 MR. SHINE: Yes, your Honor.
17 THE COURT: Do you recognize any authority
18 whatsoever?
19 MR. SHINE: Because you disagree with my
20 opinion, it's not supposed to disallow --
21 THE COURT: I don't disagree with anything you
22 say. I'm conducting the hearing. You're not.
23 Do you understand that?
24 MR. SHINE: I --
25 THE COURT: I am conducting the hearing. Do
11
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1 you agree or disagree with that?
2 MR. SHINE: I object to it, and that's why I
3 put in for a recusal of the ALJ.
4 THE COURT: All right. Okay. And so that's
5 the first and foremost matter; is it not?
6 MR. SHINE: Well, your Honor, you've even
7 mentioned, and this is --
8 THE COURT: Isn't that correct?
9 MR. SHINE: Your Honor, you've mentioned that
10 jurisdictional questions supersede and preempt all
11 others. And I'm raising a jurisdictional question now
12 which is valid, and I would ask that you allow me to
13 get this out, because there is some confusion on these
14 vessels that they have charged me with. I was an
15 acting naval officer.
16 THE COURT: Mr. Shine, you have made your
17 point.
18 MR. SHINE: I've not been able to make the
19 point, your Honor.
20 THE COURT: Mr. Shine -- hold it. You've made
21 your point in several filings several hundred pages
22 long. You have already done that.
23 MR. SHINE: And you've denied them as being
24 dilatory, repetitive. And that has all been done
25 outside of due process, because we haven't have had a
12
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1 hearing. I have not even met you. They've been taken
2 out of order, because this is the first that I've seen
3 you or --
4 THE COURT: Mr. Shine, on your motions, you
5 are not constitutionally required to have an in-person
6 prehearing conference.
7 MR. SHINE: I've --
8 THE COURT: Just a minute. The regulations
9 prescribe that you have an in-person hearing.
10 MR. SHINE: An oral due process hearing. It's
11 in the regs.
12 THE COURT: On --
13 MR. SHINE: I can read you --
14 THE COURT: -- the matter that you're being
15 charged with.
16 MR. SHINE: Exactly, an oral due process
17 hearing in person. It's in the regs. That's the whole
18 point of the entire proceedings.
19 THE COURT: Mr. Shine, you're -- if you're
20 arguing all these jurisdictional matters, and then at
21 the same time, you are arguing that I should be
22 disqualified --
23 MR. SHINE: I am.
24 THE COURT: Okay. Well, then, wouldn't it
25 make sense to determine whether or not I'm
13
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1 disqualified? Because if I rule --
2 MR. SHINE: No. First and foremost, I
3 shouldn't even be here.
4 THE COURT: No.
5 MR. SHINE: No, no. It's a jurisdictional
6 question.
7 THE COURT: No.
8 MR. SHINE: Yes, it is, your Honor.
9 THE COURT: No, no.
10 MR. SHINE: And that preempts even your --
11 THE COURT: You want me to rule on something
12 for which you think I'm disqualified.
13 MR. SHINE: At some point, yeah, well --
14 THE COURT: Well, don't you --
15 MR. SHINE: You don't have the authority --
16 you don't have the authority to rule on anything that
17 crosses over the Administrative Procedure Act, which is
18 civil service law that military does not have control
19 over.
20 Even now, these officers come under the UCMJ.
21 They are a branch of the military. They are not
22 supposed to control the Administrative Procedure Act,
23 which is civil service law. That is, they are not
24 supposed to as military adjudicate civilian affairs,
25 civilian fines or civilian penalties.
14
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1 Now, on the other hand, if they were trying to
2 say that I was a naval officer and am and was at the
3 time, that would be different.
4 But I'm not in the Coast Guard. I'm a naval
5 officer. There's a difference. I'm a commissioned
6 naval officer. I went to Kings Point. It's a sister
7 academy to the Coast Guard Academy. They're in a
8 separate and distinct branch of service.
9 So that goes to --
10 THE COURT: Do you want me to rule on the
11 jurisdictional issues, Mr. Shine?
12 MR. SHINE: I know what your decision will be.
13 THE COURT: No. Do you want me to rule on
14 them?
15 MR. SHINE: I don't think you have the power
16 to. I think it's beyond your scope, that it's supposed
17 to be in Federal District Court.
18 THE COURT: Okay. All right. Here's what
19 we're going to do, Mr. Shine. Then if it's supposed to
20 be Federal District Court -- you mean U.S. Federal
21 Court.
22 MR. SHINE: That's where these matters were
23 originally, your Honor. When Lieutenant Tribolet filed
24 the charges against me, I was in Federal District Court
25 on three matters that he's attempted to quash and step
15
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1 on that were Shine versus ASM, Shine versus Matson and
2 Shine versus MEBA, that he actually -- and he's
3 actually filed a complaint in these proceedings as
4 evidence which marries those matters to these. And
5 those were Federal District Court matters involving the
6 Jones Act, which is 46 USC 688 10302, which is the only
7 purview that the Coast Guard has over those matters is
8 to make sure that 46 -- that the shipping articles are
9 posted on board.
10 They don't have --
11 THE COURT: Mr. Shine --
12 MR. SHINE: -- control over any labor matters,
13 your Honor.
14 THE COURT: Mr. Shine, this proceeding is not
15 about your labor disputes.
16 MR. SHINE: If they -- they filed them in
17 here, your Honor, as -- the civil complaints as
18 evidence. They have to be. How can they filed them in
19 here as evidence if they're not about those matters?
20 THE COURT: I do not have jurisdiction to rule
21 on --
22 MR. SHINE: Exactly.
23 THE COURT: -- any of your labor disputes.
24 MR. SHINE: Or jurisdictional matters.
25 Any time the APA crosses with 46 USC 688,
16
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1 which used to be the Jones Act, and it's been
2 recodified to 3010, or any other laws, you have to hold
3 yourself at bar. You cannot proceed; because then
4 you're violating the due process rights knowingly.
5 You've been noticed of that, that you're knowingly
6 violating my due process rights. Because he has
7 actually filed a complaint -- on top of, he should have
8 gone into Article 3, the judicial -- excuse me, Article
9 3 proceedings, the judiciary, and filed some type of a
10 motion in those district court complaints saying, "This
11 is what we need to do" because rather than file an
12 Article 2 proceeding within what is clearly a branch of
13 the military that is trying to adjudicate civilian
14 affairs, because you're not -- I'm not in uniform.
15 They are. They're actually in uniform. And the Coast
16 Guard is declaring on its own website that it is a
17 branch of the military. They come under the UCMJ.
18 They are JAG officers.
19 They do not have jurisdiction over civilian
20 affairs, Reid v. Covert, which is still the controlling
21 law, and it went all the way up to the U.S. Supreme
22 Court is controlling. And it says they don't have
23 jurisdiction, especially in the United States.
24 I'm not over in Guantanimo or Iraq or Iran or
25 any other country. I'm here in the United States. And
17
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1 the military is not supposed to have control over or
2 adjudicate civilian affairs.
3 THE COURT: Thank you. I'll hear from
4 Mr. Tribolet.
5 MR. TRIBOLET: Your Honor, for the record, the
6 Coast Guard has not filed any papers to intercede with
7 any of Mr. Shine's civil affairs, whether they're
8 personal actions, whether they're in state or federal
9 court. The only filings have been on this Coast Guard
10 docket, sir.
11 MR. SHINE: And my license is a civilian
12 license. It's not -- the Coast Guard themselves used
13 to be under Department of Transportation, your Honor.
14 They were a civil service.
15 Now that they're in Homeland Security --
16 THE COURT: Okay.
17 MR. SHINE: Your Honor, if I just may finish
18 the point.
19 THE COURT: Okay. Mr. Shine, fine. You've
20 made your point. I'm going to rule.
21 MR. SHINE: They are now in Homeland Security.
22 They are self-declaring on their own website, it's
23 .mil, that they are a branch of the military.
24 I, however, am under the maritime
25 administration, Department of Transportation. I have
18
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1 not been, quote, unquote, "activated" under any
2 declaration of war. And at some point, I am still a
3 civil servant.
4 But I still have a naval commission that comes
5 into these matters for the two vessels that they've
6 alleged and charged me with. And I lost my naval
7 commission, or it's become an issue of dispute only
8 after they filed the charges.
9 THE COURT: Thank you, Mr. Shine.
10 My ruling is that the respondent -- the
11 subject matter of these proceedings is properly before
12 me under 46 USC 7701, et seq., Title 46 CFR, Part 5 and
13 Title 33 CFR, Part --
14 MR. SHINE: To be very clear, are you making a
15 declaration that the military -- a branch of the
16 military, the U.S. Coast Guard, has adjudication powers
17 over civilian affairs?
18 THE COURT: No, Mr. Shine. You didn't hear
19 what I said. I'll repeat it for you.
20 This administrative law judge and the U.S.
21 Coast Guard have jurisdiction over matters concerning
22 your license.
23 MR. SHINE: And 46 USC and 33 CFR, U.S.
24 codifications, they apply to U.S. citizens. And you're
25 saying that the military now has control over 46 USC
19
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1 and 33 CFR.
2 THE COURT: I'm not saying that. Mr. Shine,
3 I'm not saying that.
4 I'm saying that the Coast Guard and this
5 administrative law judge have jurisdiction over matters
6 concerning the suspension and revocation of merchant
7 mariners' licenses. Licenses are certificates and
8 documents, which you have.
9 MR. SHINE: And you're saying that, then, it's
10 not a civilian affair, that's it's a military affair?
11 Because they're in uniform, your Honor. They're JAG
12 officers. You can't ignore that.
13 THE COURT: Mr. Shine, that has nothing to do
14 with these proceedings. The Coast Guard has
15 jurisdiction over matters concerning suspension.
16 MR. SHINE: Reid v. Covert and a series of
17 other U.S. Supreme Court cases would -- you can't
18 overrule U.S. Supreme Court cases, your Honor.
19 THE COURT: Mr. Shine, I have ruled. The
20 Coast Guard has jurisdiction in this matter, and --
21 MR. SHINE: Then I have to move for recusal,
22 and I ask that this actually be held as a hearing
23 rather than a preconference, and that we have the
24 hearing now on your recusal, which I've given you the
25 documents. I ask that the lieutenant or his associate
20
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1 go ahead and take a sworn affidavit from me, which is
2 the document that I handed you this morning and the
3 document that I handed to the Coast Guard, which goes
4 to your recusal.
5 Because you're stepping on other laws that are
6 not contained within the purview of -- the initial
7 purview of the Coast Guard. There's been changes,
8 structural changes, in the Coast Guard since it's moved
9 into Homeland Security, and there are other issues that
10 I have to bring up and that you're forcing me to bring
11 up about cases that you've ruled on and your history,
12 your judicial history going all the way back to
13 Virginia in your position as a prosecutor and your --
14 THE COURT: Mr. Shine, just --
15 MR. SHINE: And your --
16 THE COURT: Mr. Shine, first of all, when you
17 address the court, stand.
18 MR. SHINE: And I would ask, also, that the
19 Coast Guard be required the same rules, your Honor.
20 THE COURT: Well, they have already -- they
21 have already complied. You have not.
22 We'll take up the first matter of whether or
23 not the ALJ should be disqualified. That's why I put
24 this as number one, Mr. Shine. Okay. We just spent 25
25 minutes going over something that we all knew to begin
21
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1 with.
2 Okay. Mr. Shine, you are the moving party on
3 whether or not the ALJ shall be disqualified; so you
4 get to go first for a period of 20 minutes. And you
5 get to -- and the Coast Guard also gets to respond.
6 MR. SHINE: And may I respond or rebut to
7 his --
8 THE COURT: Mr. Shine, you've got 20 minutes.
9 MR. SHINE: Well, your Honor, I have no idea
10 what the Coast Guard is going to say during these
11 proceedings. I've not been properly noticed or
12 calendared of that by motion. So what his response is
13 or what he's going to argue, I have no idea.
14 MR. TRIBOLET: Your Honor, may I suggest that
15 the parties be allowed to split their time, ten minutes
16 to give their initial argument and ten minutes to
17 respond to the other parties if they --
18 MR. SHINE: And then go over --
19 THE COURT: That's fine with me. We're not
20 going to stay here all week. We've got 20 minutes for
21 each party. How you choose to use that time is
22 certainly up to you.
23 MR. SHINE: Well --
24 THE COURT: Okay. Let's proceed. Mr. Shine,
25 it's --
22
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1 MR. SHINE: I would like to also get into the
2 order, your Honor, that you issued. There's already
3 been several ex parte motions -- ex parte proceedings
4 that you have not only ordered, but you have actually
5 held, not only with myself but the Coast Guard. The
6 order of the items that you've put in here, I find
7 highly prejudicial, and I would like to object to now,
8 because you have put yourself and your own issue first
9 as to your recusal.
10 And if you look at regulations, it goes into
11 taking the document that I've passed to you now and a
12 sworn affidavit within these proceedings and actually
13 passing them on to the commandant immediately for
14 disqualification.
15 It says the -- "If the person seeking
16 disqualification takes exemption to the administrative
17 law judge's ruling, that person may appeal to the
18 commandant. When such appeal is made, the
19 administrative law judge immediately forwards the
20 affidavit or sworn statement with the decision thereon
21 to the commandant. The administrative law judge may
22 proceed with the hearing unless it could be shown that
23 a delay in the hearing pending a determination of
24 appeal will not be detrimental to the matters being
25 adjudicated. The administrative law judge ensures that
23
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1 all matters related to such claims of disqualification
2 appear affirmatively in the record."
3 So I'm asking you first and foremost that the
4 document that I handed you this morning that included a
5 document by Gulf Coast Mariners Association entitled
6 "Volume 12, Investigations, Eric Norman Shine, quote,
7 unquote, "Whistle-Blower activities" be entered into
8 and affirmatively forwarded on to the commandant.
9 And it goes into the Dresser case, the "Elzig"
10 case. Many of the other cases going on in New Orleans
11 where you have been cited as a defendant, you have been
12 dismissed and given, quote, unquote, "some level of
13 immunity"; but herein, you are on notice that you are
14 violating my due process rights, not only because of
15 the jurisdictional questions of having the military
16 adjudicate civil affairs, but the preexisting civil
17 complaints from Article 3 proceedings that Lieutenant
18 Tribolet had stepped on intentionally, has even filed
19 in these proceedings as evidence.
20 Beyond that, I've also prepared a document
21 that goes into -- it's 105 pages, 105 pages, including
22 the notice of related cases, where it has the different
23 various cases in there. It also has the service and
24 approximately 105 pages of information regarding -- and
25 I believe that before you rule, you have to read this
24
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1 document and read this Volume 12. Because if you do
2 not, then your decision will be prejudicial.
3 All this information is being entered into the
4 record. I ask that you read it, take the time if the
5 Coast Guard needs the time to read it, they so do. If
6 you need to suspend the proceedings until later today
7 until all parties have had a chance to read it.
8 This gets into your involvement not only in
9 the Dresser case, where I believe there's issues of
10 judicial racketeering, whether you want to call this
11 issues of quasi judicial racketeering, where you are
12 deciding on cases to intentionally step upon and injure
13 individuals' civil rights, civil complaints that have
14 been filed -- preexisting civil complaints that have
15 been filed in Federal District Court involving federal
16 contractors.
17 There's other cases that are cited in here
18 that you've been involved in, going all the way back to
19 Virginia, your -- I guess articles that you've written
20 for a magazine called the "Prosecutor," and I think
21 that to a large degree, you are constitutionally
22 incapable because of your training, your experience and
23 what you've done in the past, I think your own record
24 speaks highly of that issue, not just in other
25 proceedings but in the incident proceedings, where you
25
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1 have held matters off the record. You've tried to
2 monkey with due process so that I could not get a
3 formal hearing to raise all the issues going back to
4 not only March 6, but even jurisdictional questions
5 that are important; because at some point, it goes to
6 waste, fraud, abuse and gross mismanagement on your
7 part of using these proceedings to proceed when they
8 are irrelevant and they do not -- they do not have
9 proper jurisdiction over the matters.
10 I ask that, if necessary, the Coast Guard --
11 even before they can respond -- I don't know how they
12 can go ahead and respond to a hundred-page document
13 that they need to read, plus another 80 pages or so
14 that has formal civil complaints. It actually has in
15 here the prehearing settlement conference, where
16 there's all sorts of holes in the record, missing
17 documents.
18 The Coast Guard was supposed to come forward
19 and let the opposition know how they got ahold of
20 medical records. There was no warrant issued. They
21 did not go to a U.S. district court judge to get those
22 records. They actually falsified -- in the contingent
23 motion for summary judgment, they falsified medical
24 records, which is a matter of record. This was
25 contested.
26
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1 And at some point, how can they be trusted now
2 to force upon me any kind of a medical or mental health
3 examination, take those records and not bastardize them
4 somehow. They have already done it. Lieutenant
5 Tribolet has actually been involved in that, your
6 Honor. And I think that's one reason why I put up the
7 issues of recusal not only of yourself, but also of
8 Lieutenant Tribolet.
9 There's a lot more than I could go into it;
10 because even the issues of Lieutenant Tribolet, which
11 is tied to your own recusal, it says in here that
12 "complicated --" and this is coming from the
13 regulations, "Complicated or conflicting medical data
14 in which the mariner's --
15 THE REPORTER: Please slow down.
16 MR. SHINE: I'm sorry.
17 THE COURT: Slow down, Mr. Shine. She's only
18 got --
19 MR. SHINE: Well, I've only got 20 minutes,
20 which I object to the rule as --
21 THE COURT: Mr. Shine, proceed.
22 MR. SHINE: This goes into acceptance of
23 medical reports. This is from the regulations. It
24 says "Prior to releasing the medical history to the
25 physician, the --" well, let me back up a little bit.
27
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1 Actually, I'll read the whole thing. This is Item 9,
2 acceptance of medical reports; "A medical report
3 indicating that a mariner is fit for duty need not be
4 accepted without question. The designation of fit for
5 duty requires a careful evaluation balancing the
6 mariner's past medical history, his or her current
7 physical, mental condition and future medical outlook
8 against the person's ability to live and perform safely
9 on a shipboard environment. In some instances, the
10 evaluation may be reasonably conducted by the IO,"
11 which was Lieutenant Tribolet. He was the charging
12 officer. He's now in legal. He's no longer an IO.
13 Although he's been named in here as in IO, he's
14 actually in the legal division seized the records from
15 the investigating officer, Lieutenant Parham who
16 recently had it.
17 "In some instances, this evaluation may be
18 reasonably conducted by the IO and then deposited.
19 MMCs may be returned to the mariner. The IO may
20 consult with a physician concerning a mariner's prior
21 medical history and shipboard duties for this purpose,"
22 meaning getting some kind of specialist or -- "prior to
23 releasing the medical history to the physician, the
24 consent of the mariner shall be obtained."
25 I have never given my consent for my medical
28
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1 records. They have stolen them unwarranted and
2 falsified them. And so how can the Coast Guard now be
3 trusted to do the right thing with any medical records
4 relating to this matter?
5 It also says that "In certain instances,
6 however, a proper evaluation will be considered to be
7 beyond the scope of an IO's expertise and discretion.
8 These instances include cases involving," and they're
9 very specific, "1 (a), convulsive disorders, such as
10 epilepsy; b, psychiatric illnesses and --" and I'm not
11 saying I have a psychiatric illness. They are.
12 But it says right here that they're forbidden
13 from getting at it. That's supposed to be passed on to
14 the chief medical officer, which they did not do. And
15 they didn't get a signature from me for these medical
16 records.
17 So we have all sorts of legal and technical
18 issues that go into jurisdiction because of -- you
19 know, you may think that Miranda has been thrown out,
20 and I've seen your writings on it and the individual
21 who you have written articles with, the individual who
22 speaks Farsi tied to the "Commerce" case involving Iran
23 that you've ruled on. That is also in the motion, and
24 I think you should read it.
25 "Complicated or conflicting medical data, in
29
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1 which the mariner's ability to live and perform safely
2 in a shipboard environment is unclear to the IO."
3 I have tens of thousands of hours at sea. How
4 many hours has he spent at sea? How many hours have
5 you spent at sea? Have you ever gone to sea? Are you
6 a naval officer? Are you an exnaval officer? Are you
7 still an officer of the court as far as an attorney,
8 which goes to conflicts of interest. Are you still a
9 member of the prosecutor association. Do you still
10 write articles for the "Prosecutor"?
11 Many of these issue are raised in this filing,
12 and I think it's germane to the issues. I don't think
13 that you can, in this instance, especially, what's
14 happened in Dresser and some of the other cases, decide
15 or hear these matters to really get at what's going on
16 here. I think you have a directed outcome. You've
17 already made it very clear in all of your rulings thus
18 far that you want me to undergo a mental health
19 examination. How can you not say that it should be a
20 CAT scan, a PET scan, a blood test or anything else?
21 You're not a medical officer. You have no training in
22 that field or industry. You do not have the
23 qualifications for that.
24 And at some point, to direct me to a mental
25 health examination, I believe, is prejudicial. And
30
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1 you've already put that out in writing in several
2 motions in several filings before we've had any
3 appearance.
4 And even the Coast Guard lieutenant did a
5 quick, you know, notice of appearance and a bunch of
6 filings in a rush to try to end this matter rather than
7 have a proper hearing.
8 We have never had a hearing. You even said
9 this morning this is a prehearing conference. It's
10 been five years now. To place me a position where I'm
11 at a great loss -- and the lieutenant has in the last
12 five years gone away to law school, gotten his law
13 degree. He is now a member of the bar, which I believe
14 you may still be a member of, or it's an association
15 that you used to be a member of, which goes to
16 conflicts of interest. He is a uniformed officer in a
17 branch of the military. I am, and they are charging me
18 as a civilian, which they do not have jurisdiction
19 over.
20 And again, I would ask that -- there's other
21 issues, but I will go ahead and defer to the Coast
22 Guard. And I would ask that if there needs to be some
23 form of a recess to go ahead and read the documents and
24 then meet and convene later to continue on this,
25 because I've asked, also, as per the regs that this be
31
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1 passed on. And I believe that there are issues here
2 that we cannot proceed on any of the other matters,
3 because you're sitting on or presiding over these
4 matters would make everything else corrupt, for want of
5 a better word.
6 THE COURT: It's 10:29. Okay. In about 30
7 seconds, we'll get to Mr. Tribolet. I want to hear
8 from Mr. Tribolet first, and --
9 MR. SHINE: And if I may object, because the
10 Coast Guard is now representing you on the recusal,
11 which I find to be an issue of not only separation of
12 power and separation of duties, but now --
13 THE COURT: Okay. I understand. I
14 understand. That's -- your objection is noted. That's
15 all you have to say. Just say "I object."
16 MR. SHINE: But it makes the conflicts that
17 much more clear, because now the Coast Guard is
18 representing you.
19 THE COURT: Okay. Mr. Shine, now I'm going to
20 hear from Mr. Tribolet.
21 All right. I'm looking at the clock on the
22 back of the wall. It looks like it's 10:30; so we'll
23 start at 10:30.
24 Mr. Shine, you've got approximately eight
25 minutes left.
32
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1 MR. SHINE: Thank you, your Honor.
2 MR. TRIBOLET: Good morning, your Honor.
3 The first thing that I wanted to address is
4 this allegation that I tampered with evidence at any
5 one time. That's not an allegation -- I want to assure
6 the court that I have never ever tampered with any of
7 the evidence.
8 MR. SHINE: Well, that's a matter that is a
9 legal --
10 THE COURT: Mr. Shine --
11 MR. SHINE: I object, your Honor.
12 THE COURT: Mr. Shine --
13 MR. SHINE: I object.
14 THE COURT: Mr. Shine, when you were giving
15 your oral argument, Mr. Tribolet sat there.
16 MR. SHINE: I hear you, your Honor. I hear
17 you.
18 THE COURT: Okay. Don't let me have to warn
19 you again. So you'll have an opportunity to respond.
20 Go ahead, Mr. Tribolet.
21 MR. TRIBOLET: I just want to put it on the
22 record, your Honor, that I do accede to the allegation
23 that there's misconduct on my part, especially handling
24 of evidence.
25 Mr. Shine cites the marine safety manual, the
33
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1 proposition that the Coast Guard must go through the
2 chief medical officer of the Coast Guard before going
3 forward with a case like this. And I just wanted to
4 point out briefly, sir, that the section he cites with
5 is in Section C of Chapter 2 of Volume 5 of the marine
6 safety manual concerning procedures in lieu of hearing,
7 not concerning S&R hearings themselves.
8 It's found in Paragraph 9 of that section, and
9 it concerns restrictions on IOs returning merchant
10 mariner credentials that were voluntarily deposited by
11 a mariner who wishes to avoid a hearing. So this has
12 to do with return of credentials.
13 Getting on to the issue at hand, however, sir,
14 the recusal of the ALJ, it's not clear to the Coast
15 Guard what the basis of the recusal is. The standard
16 in 33 CFR Section 20.204 is any valid cause.
17 Some of the causes that have been put forward
18 are that, one, you might be a member of a bar, and that
19 creates a conflict since I might also be a member of
20 the bar; two, that you were previously a prosecutor.
21 And this is, again, your Honor, saying that a person
22 may not serve as a judge because they once served as a
23 lawyer previously, in fact, goes against the very
24 nature of the structure of our legal system and what we
25 expect from our judges generally.
34
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1 He also says in some of his filings that your
2 job is somehow like a pit bull, "He was trained to
3 prove my guilt." That's Mr. Shine's 26 September 2007
4 motion at Page 20. He says "It's very clear that
5 herein individuals are closely involved in war
6 profiteering and oil profiteering. This includes the
7 new ALJ,
8 Mr. Brudzinski, and his own involvement in
9 administrative commerce cases that involve oil, Iran
10 embargoes, playing with supply and demand, blocking
11 parts from getting into Iran to keep oil on the market
12 and more birds of a feather," end quote.
13 That's Mr. Shine's 26 September 2007 motion at
14 Pages 26 to 27.
15 The most recent filing submitted today says
16 that -- gives another reason for your recusal. It says
17 "Because you live in New York, and he has cases filed
18 in New York, that this might create a conflict of
19 interest." That's his 23 October 2007 motion at the
20 bottom of Page 5.
21 The Coast Guard does not see any valid cause
22 in these reasons, sir. Obviously, the Coast Guard is
23 not in the same position as you, sir. We understand
24 that you have the best perspective to decide whether
25 you must be recused or not.
35
UNEDITED, UNCERTIFIED TRANSCRIPT - FOR ATTORNEY'S EYES ONLY
1 MR. SHINE: Excuse me. Sorry. Let me turn it
2 off.
3 MR. TRIBOLET: But we did want to make the
4 record that these allegations are simply outrageous.
5 We also want to make the record that it's not
6 just you, sir, that he distrusts, but it's also the
7 office of the administrative law judge. In his 17
8 April 2007 motion at Page 38, he says, and I quote "It
9 is clear the U.S. Coast Guard and office of
10 administrative law judges and the United States in
11 general, and more specifically as to individuals
12 involved, wish to ensure the respondent never makes it
13 in a timely fashion, or more importantly, alive into
14 any such timely or fully recorded due process hearing
15 to explain these matters more fully."
16 That's his 17 April '07 motion at Page 38.
17 Another thing he says about the office of the
18 administrative law judge, quote, "It appears the U.S.
19 Coast Guard wishes to align efforts to those are the
20 OALJ or ALJ and work together to deny the alleged
21 respondent from any level of proper due process."
22 That's his 26 September motion at Page 55. I
23 believe --
24 MR. SHINE: What year was that?
25 MR. TRIBOLET: 2007, sir, at Page 55.
36
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1 Mr. Shine also made allegations against the
2 office of the administrative law judges in prior
3 motions, which Judge McKenna ruled on in his attachment
4 to his summary judgment order. He not only distrusts
5 the office of the administrative law judge, sir. He
6 distrusts the entire Coast Guard.
7 Speaking of the Coast Guard, in general,
8 Mr. Shine says, quote, "The entire system, and make
9 sure that there is no chance, regardless of how
10 ridiculous or Medieval charges or processes and
11 procedures are, that anyone might arise from these
12 proceedings vindicated in any way, shape or form."
13 That's his 26 September of 2007 motion at Page
14 32 quoted in your 11 October 2007 order.
15 Speaking of the commandant, Mr. Shine has this
16 to say, quote, "It is very clear that the commandant
17 and his staff know exactly what they are doing in
18 torturing and carrying out and allowing to be carried
19 out ad hominem attacks against the alleged respondent
20 so as to oppress him into an early grave and allow him
21 absolutely no chance to defend himself or carry out any
22 sort of a real debate within these proceedings
23 regarding what the U.S. Coast Guard is doing and why."
24 That's his 26 September 2007 motion at Page
25 26.
37
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1 Speaking of the vice commandant, sir, he says,
2 referring --
3 MR. SHINE: Your Honor, I must object, because
4 all he's doing now is making it more difficult for the
5 vice commandant or commandant to rule on this. They're
6 the appellate body --
7 THE COURT: Mr. Shine, you're taking -- the
8 Coast Guard allowed you to talk.
9 MR. SHINE: I'm just making it clear on the
10 record.
11 THE COURT: You don't need to make it clear,
12 Mr. Shine. I'm very much aware of the record. I've
13 read the record.
14 MR. SHINE: But when he's violating certain
15 issues, I need to make it clear, you know, so that you
16 can get a --
17 THE COURT: Mr. Shine, make it clear on your
18 own time.
19 MR. SHINE: Yes, your Honor.
20 MR. TRIBOLET: Sir, referring to the remand by
21 the vice commandant, the respondent says, quote, "This
22 is a gross violation of due process itself that the
23 vice commandant has carried out intentionally upon
24 respondent so as to increase and further the ongoing
25 injuries. Hopefully, the respondent has left enough of
38
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1 a trail of evidence in filings and documentation to all
2 those involved would be prosecuted for war crimes and
3 crimes against humanity, irregardless of one and how
4 many -- and how this may come about from their
5 involvement in these and related matters."
6 That's his motion of 17 April 2007.
7 He also distrusts the Department of
8 Transportation, the Department of Homeland Security and
9 the United States of America in general. Quote, "In
10 good conscious, the respondent cannot carry on any
11 teleconference with any personnel from the executive
12 branch for obvious reasons. Especially the U.S. Coast
13 Guard or its office of administrative law judges, as
14 with all that has occurred to date and with extreme
15 prejudice and dishonesty already exhibited by the
16 United States of America, the Department of Homeland
17 Security, the Department of Transportation, the U.S.
18 Coast Guard, office of administrative law judges and
19 other individuals against the respondent, the United
20 States has lost its good faith standing with the
21 respondent and must take every step required to cure
22 the gross violations." And he goes on.
23 That's his Shine motion of April 17th, 2007 at
24 Page 19.
25 Another quote directed at the -- whether he
39
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1 trusts the United States; quote, "The United States of
2 America, the Department of Homeland Security, the
3 Department of Transportation, the U.S. Coast Guard and
4 other interested parties, either individually,
5 personally or collectively, wish to injure and suppress
6 the substantive and legal rights and remedies of the
7 respondent and others so situated by forcing an opinion
8 or order upon respondent and by disallowing proper due
9 process in open and full disclosure and full and fair
10 and open verbal recordings, recorded both in audio and
11 visual to protect the due process rights." And he goes
12 on.
13 That's his motion of April 17th, 2007 at
14 Page 3.
15 Your Honor, his distrust of government is not
16 limited to the executive branch. Speaking of the
17 courts and the United States in general and congress,
18 he says, this, quote, "This is something that has been
19 brought on by or about by the ongoing retaliatory
20 actions, inactions and derelictions of duty taken or
21 failed to be taken by overwhelming forces of the United
22 States of America and its agents or representatives in
23 various numerous forms, including but not limited to,
24 the F.B.I., the U.S. Attorney's Office, general
25 agencies in the form of shipping companies or federal
40
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1 officers associations, MARAD, DOT, DOTIG, DHS, DOD, the
2 U.S. District Courts, Ninth Circuit and other direct
3 and contracted federal authorities that are all a
4 matter of record in numerous and various forms,
5 including congress, but most contemptuously, the U.S.
6 Coast Guard and Department of Homeland Security."
7 And my point here, your Honor, is that --
8 MR. SHINE: What is your point?
9 THE COURT: Mr. Shine, the more outbursts --
10 the more time you take, I'm going to have to add onto
11 his time; so --
12 MR. SHINE: That's fine, your Honor.
13 THE COURT: It's probably a good idea to wait
14 till it's your turn.
15 MR. SHINE: No problem.
16 THE COURT: We take our turns here, Mr. Shine.
17 Continue.
18 MR. TRIBOLET: My point, your Honor, is that
19 the respondent has no trust in any institution of
20 government, any agency or any person that would be
21 called upon to adjudicate this matter.
22 And absent a real conflict of interest, we
23 don't see any merit in his motion to disqualify the
24 administrative law judge, although we obviously leave
25 it to you, sir.
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