{"article":{"id":209868,"heading":"MILITARY TRIBUNALS IN AMERICA","author":"ERIC SHINE","created":"2007-11-13 11:11:00","modified":"2007-11-13 11:11:00","last_modified":"Tue, 13 Nov 2007 18:11:00","article":"

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



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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.

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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

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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.

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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.

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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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