UNITED STA TES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STA TES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

MERCHANT MARINER LICENSE & 

MERCHANT MARINER DOCUMENT 

Issued to: ERIC NORMAN SHINE 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 26 6 1 

This appeal is taken in accordance with 46 USC§ 7701 et seq., 46 CFR Part 5, 

and the procedures in 33 CFR Part 20. 

By a Decision and Order (hereinafter "D&O") dated February 20, 2004, an 

Administrative Law Judge (hereinafter "ALJ'') of the United States Coast Guard at 

Alameda, California, issued a summary decision revoking the merchant mariner 

credentials of Mr. Eric Norman Shine (hereinafter "Respondent") upon finding proved a 

charge of medical incompetence. 

The specification found proved alleged that Respondent suffers from a mental 

impairment of sufficient disabling character which renders him unable to safely perform 

his duties aboard a merchant vessel. 

PROCEDURAL HISTORY 

On March 6, 2003, the Coast Guard issued a Complaint against Respondent 

alleging that he is medically incompetent due to a major depressive disorder, or other 

psychiatric condition, "the exact nature of which .. . [would] ... be determined through the 

hearing process." [Complaint at 2] 
SHINE 

From March 2003, when the Coast Guard filed its Complaint, until the ALJ issued 

his D&O, Respondent and the Coast Guard engaged in extensive motions practice. 

During that time, approximately 129 motions, replies and orders were filed and issued; 

the record is extensive and voluminous. Most notably, the ALJ issued three Orders (on 

July 30, 2003, August 4, 2003, and September 8, 2003) requiring Respondent to submit to 

a psychological examination by an independent doctor of the ALJ's choosing. [D&O at 

2] Respondent did not comply with any of those orders to the satisfaction of the ALJ1 

[Id.] Instead, on August 1 and August 22, 2003, Respondent submitted to a psychological 

evaluation by his chosen Doctor, Dr. Richard G. Rappaport. 

On September 10, 2003, citing the negative inference created by Respondent's 

failure to submit to the psychological examination ordered by the ALJ, as well as many 

other pieces of evidence, the Coast Guard filed a "Contingent Motion for Summary 

Decision." [D&O at 6, 33 C.F.R. § 20.90l(a)] On October 1, 2003, Respondent filed a 

brief in reply to the Coast Guard's Contingent Motion for Summary Decision. [D&O at 

7] In his Reply, Respondent argued that there was a genuine disputed issue of material 

fact presented in the case and, to support that assertion, he provided the ALJ with Dr. 

Rappaport's report which indicated that although Respondent suffered from "major 

depression," that depression did not render him incompetent to perform the duties 

associated with his merchant mariner credentials. [D&O at 7; Report of Richard G. 

Rappaport, M.D. at 15] Following the issuance of numerous other orders, motions and 

1 The record shows that although Respondent showed up for the last scheduled psychological examination, 

he insisted that both his attorney and a videographer be present during the evaluation. Because the 

attending psychiatrist would not allow the evaluation to be conducted in this manner, the evaluation did not 

occur. [D&O at 30-31] 

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SHINE NO. 2 6 6 1 

replies which will not be discussed herein, on February 20, 2004, the ALJ granted a 

summary decision, in favor of the Coast Guard, in the case. [D&O at 45] As such, no 

hearing was held. 

Respondent filed his Notice of Appeal of the ALJ's summary decision on March 

9, 2004, and, thereafter, perfected his appeal by filing his Appellate Brief on April 26, 

2004. Therefore, this appeal is properly before me. 

APPEARANCE: Prior to filing his appeal, Respondent was represented by 

Forgie, Jacobs & Leonard (Peter S. Forgie, Esq.), 4165 E. Thousand Oaks Boulevard, 

Suite 355, Westlake Village, CA 91362. On appeal, Respondent appears prose. The 

Coast Guard was represented by LT Chris Tribolet and LT Brian Hill, of U.S. Coast 

Guard Marine Safety Office Los Angeles-Long Beach, California. 

FACTS 

At all times relevant herein, Respondent was the holder of the Coast Guard issued 

merchant mariner credentials at issue in these proceedings. (Complaint at 1; D&O at 23] 

Respondent acted under the authority of his merchant mariner credentials by 

serving as the Third Engineer and/or Second Engineer aboard the MN MAUI between 

March 6, 2001, and June 11, 2001. [Complaint at 2] In addition, Respondent acted under 

the authority of the same merchant mariner credentials when he served as the Third 

Engineer aboard the MN PRESIDENT JACKSON between December 2, 2001 and 

January 5, 2002. [Id.] 

While serving as an engineer on the MN MAUI and the MN PRESIDENT 

JACKSON, the Respondent allegedly engaged in behavior that was viewed by his 

supervisors and members of the crew as harassing, aggressive, litigious and unsafe. 

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SHINE 

[D&O at 24, 26-28] A logbook entry from the MN PRESIDENT JACKSON indicated 

that Respondent's continued presence onboard created an un-seaworthy condition due to 

his insubordination and inability to follow orders which threatened the safety of the ship. 

[D&O at 26] The Chief Engineer onboard the MAUI reported that Respondent did not 

have the necessary skills to perform his duties and possessed an overall inability to work 

with other crewmembers. [D&O at 27] 

Respondent contends that he has been the long-standing recipient of unfair 

treatment by his labor union and supervisors. [Appellate Brief at 3, 8-10, 15] 

Respondent has filed numerous complaints with his union against crewmembers and 

supervisors on the ships he has served on. [Appellate Brief at 8-10, 15] Respondent 

claims the union has not taken any appropriate action in response to his numerous 

requests. [Id.] Respondent has filed several lawsuits against his union during the course 

of these proceedings. [Id. at 15-18] 

In January of 2001, Respondent learned that his father had cancer and he went 

home for some time. [Investigating Officer (hereinafter "IO") Proposed Exhibit 32 at 5] 

Fearing that he may be fired, and alleging the MN MAUI was not giving him the leave 

due to him under the circumstances, Respondent returned to work. [Id.] The day after 

getting another assignment on the MN MAUI, Respondent's father passed away. After 

Respondent returned home, he learned that he had been replaced aboard the MAUL [Id.] 

Respondent claims that the passing of his father in conjunction with the other labor 

disputes he was involved in were damaging to him psychologically. [Id.] Respondent 

contends that he never committed any act of incompetence while acting under the 

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SHINE NO. 2561 

authority of his mariner credentials and that he is currently mentally capable ofreturning 

to a ship. [Id.] 

BASIS OF APPEAL 

Respondent raises numerous issues on appeal, many of which may or may not 

have substantial merit. According to 33 C.F.R. § 20.lOOl(c), however, "no interested 

person may appeal a summary decision except on the issue that no hearing was held or 

that in the issuance of the decision the ALJ did not consider evidence that that person 

would have presented." 

In this case, the ALJ granted the Coast Guard's motion for summary decision, 

after finding that "the Coast Guard has shown that there exists no genuine issue of 

material fact that Respondent suffers from a mental impairment of sufficient disabling 

character, which renders him unable to safely perform his duties aboard a merchant 

vessel." [D&O at 44] As such, the sole issue presented in this case is whether there is a 

genuine issue of material fact regarding Respondent's mental health and ability to serve 

under the authority of his merchant mariner credentials. 

OPINION 

Pursuant to Coast Guard regulation, an ALJ may grant Summary Decision in a 

Suspension and Revocation proceeding only if "the filed affidavits, the filed documents, 

the material obtained by discovery or otherwise, or matters officially noted show that 

there is no genuine issue of material fact and that a party is entitled to summary decision 

as a matter oflaw." 33 C.F.R. § 20.90l(b). The regulation further states that once the 

moving party has supported his motion for summary decision, the party opposing the 

motion may not "rest upon the mere allegations or denials of facts contained in his or her 

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SHINE NO. 2 6 6 f 

own pleading," instead, the opponent's "response to the motion ... [for summary 

decision] .. . must provide a specific basis to show that there is a genuine issue of material 

fact for the hearing." 33 C.F.R. § 20.901(c). 

An exhaustive search of prior Commandant Decisions on Appeal shows that the 

issue presented in this case is one of first impression. As such, I have turned to federal 

case law precedent for guidance on the issue presented. The federal courts have held that, 

in summary decision cases, an actual controversy of fact exists only where both parties 

have submitted evidence of contradictory facts. Olabisiomotosho v. City of Houston, 185 

F.3d 521, 525 (5th Cir. 1999). Furthermore, in such cases, "the evidence of the nonmovant [here, Respondent] is to be believed, and all justifiable inferences are to be drawn 

in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party is, nonetheless, required to "present affirmative evidence in order to defeat 

a properly supported motion for summary [decision]." Schoonejongen v. Curtiss-Wright 

Corp., 143 F.3d 120, 130 (3rd Cir 1998). The courts have made clear that the affirmative 

evidence presented "must amount to more than a scintilla, but may amount to less ... than 

a preponderance." Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3rd 

Cir. 1989). 

Perhaps more important here, the courts have stated that the function of a motion 

for summary decision is not to pennit the court (or here ALJ) to decide issues of fact, but 

solely to determine whether there is an issue of fact to be tried. See Aetna Ins. Co. v. 

Cooper Wells & Co., 234 F.2d 342 (6th Cir. 1956); Nyhus v. Travel Management Corp., 

466 F.2d 440 (D.C. Cir. 1972); U.S. v. Bissett-Berman Corp., 481 F.2d 764 (9th Cir. 

1973). In that vein, the Courts have noted that "preponderance of the evidence is not the 

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SHINE NO. 2 6 6 1 

test in a summary judgment proceeding; rather the test is whether a genuine issue of 

material fact remains after examination of pleadings, depositions, answers to 

interrogatories, and admissions on file, together with affidavits." Ransburg ElectroCoating Corp. v. Lansdale Finishers, Inc., 484 F.2d 1037, 1039 (3d Cir. 1973). 

In this case, the record shows that the Coast Guard provided the ALJ with 

numerous documents to support its assertion that there was no genuine issue of material 

fact as to whether Respondent suffers from a major depressive disorder or other 

psychiatric condition that renders him incompetent. (D&O at 6] Included among these 

documents were "non-medical documentary evidence" and "medical reports from various 

physicians diagnosing Respondent with a depressive disorder." [Id.] In addition, the 

Coast Guard relied on 33 C.F.R. § 20.1313 which states that a Respondent's failure or 

refusal to undergo an ordered examination "may be sufficient for the ALJ to infer that the 

results would have been adverse to the respondent." 

In response to the Coast Guard's motion for summary decision, Respondent 

asserted as follows: 

If, indeed, the sole issue to be resolved in this case is the Respondent's 

current mental state, and his "competency" ... there nevertheless remain 

factual issues requiring a full hearing. As can be seen from the attached 

report of Richard Rappaport, M.D., Respondent does not now suffer from 

incapacitating mental disorders, and, furthermore, does not demonstrate 

any "incompetency" such as has been charged by the Coast Guard. 

(Respondent's Opposition to Contingent Motion for Summary Judgment at 13] In 

support of this assertion, Respondent provided the ALJ with Dr. Rapapport's Declaration, 

his report discussing the findings and conclusions that resulted from his examination of 

Respondent, and a copy of Dr. Rappaport's Curriculum Vitae. 

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SHINE NO. 2 6 6 1 

A careful reading of the ALJ's D&O shows that the ALI was highly concerned 

with the reliability of the evaluation conducted by Dr. Rappaport. In this vein, the ALJ 

stated as follows: 

Neither the undersigned judge nor the Coast Guard had prior knowledge 

that Dr. Rappaport saw the Respondent. More importantly, Dr. Rappaport 

rendered his evaluation without sufficient information from the parties or 

specific instructions from the judge. lnstead, by surreptitiously seeking 

Dr. Rappaport's services, the Respondent was able to manipulate the 

interview by selectively disclosing favorable information regarding his 

psychological well being. For example, the section in Dr. Rappaport's 

evaluation pertaining to Mr. Shine' s psychiatric history is devoid of any 

reference to either Mr. Shine's nervous breakdown in January 2003, or his 

hospitalizations in December 2002 and January 2003. Similarly, the report 

fails to mention the Respondent's numerous counseling sessions with 

various psychologists over the past few years including, but not limited to, 

Dr. Francine Kulick, Dr. Emad Tadros, and Dr. Douglas Riddle. Suffice it 

to say, either Dr. Rappaport was not privy to Mr. Shine's complete 

psychological history or Dr. Rappaport deliberately chose to discount 

crucial information without providing a reasonable explanation. 

Consequently, Dr. Rappaport's conclusion that Respondent does not suffer 

from a mentally incapacitating disorder is viewed as conjecture at best and 

is appropriately rejected. [footnote omitted] 

[D&O 31-32] Upon so concluding, the ALJ granted the Coast Guard's motion for 

summary decision. 

As is discussed above, in evaluating whether summary decision was proper in this 

case, I will not weigh the evidence, but rather, I will view the evidence in the light most 

favorable to Respondent to divine the existence of a genuine dispute of material fact. 

With regard to whether Respondent suffers from an incapacitating mental disorder which 

renders him incompetent to perform the duties associated with his merchant mariner 

credentials, Respondent clearly presented evidence-Dr. Rappaport's report-to 

contradict the evidence presented by the Coast Guard. Although the ALJ's findings 

regarding the credibility of Respondent's evidence would likely have been upheld after a 

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SHINE NO. 2 6 6 1 

hearing on the merits, it was improper for the ALJ to make such determinations at this 

stage of the proceedings. Respondent offers medical evidence and argument to show that 

he does not now suffer from an incapacitating mental disorder while the Coast Guard 

offers evidence to the contrary: this is a factual dispute at its very essence. This factual 

dispute makes the granting of summary decision improper. Accordingly, Respondent's 

appeal is granted. 

CONCLUSION 

There is conflicting evidence in the record as to whether Respondent is "fit" to 

serve under his Coast Guard issued merchant mariner credentials. Respondent has 

presented affirmative evidence, which the ALJ did not view in the light most favorable to 

Respondent. There remains a genuine issue of material fact that needs to be examined at 

a hearing, to wit: whether Respondent is currently mentally fit to serve under the authority 

of a merchant mariner license and document. As such, the findings of the ALJ did not 

have a legally sufficient basis and the ALJ erred in denying Respondent a hearing. 

ORDER 

The order of the ALJ, dated at Alameda, California, on February 20, 2004, is 

VACATED and REMANDED for a hearing in this matter to be convened. 

V.S. Crea 

Vice Admiral, U.S. Coast Guard 

Vice Commandant 

Signed at Washington, D.C. this~f ~2006. 

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