UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

__________________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

ERIC NORMAN SHINE, 

Respondent 

___________________________ 

Docket Number: CG S& R 03-0166 

CG Case No. 1671475 

ORDER GRANTING SUMMARY DECISION

Issued: July 21, 2004

Issued by: Hon. Parlen L. McKenna
TABLE OF CONTENTS

I. PRELIMINARY STATEMENT..............................................................................................................................1

II. DISCUSSION.........................................................................................................................................................7

A. Coast Guard’s Motion For Summary Decision..............................................................................................7

1. Legal Standard of Review of the Motion for Summary Decision...................................................................7

2. The Coast Guard’s Motion for Summary Decision is not Procedurally Defective......................................10

3. Federal Regulations and Case law unequivocally required the Respondent to turn over his medical records 

and submit to a psychological examination.........................................................................................................12

4. The Coast Guard has Satisfied its Burden of Proof........................................................................................19

a. The Coast Guard Proved Respondent was Acting Under the Authority of His License/Document ...........20

b. The Coast Guard Proved Respondent is Mentally Incompetent and Unfit for Duty at Sea ........................21

5. The Respondent Failed to Identify Specific Facts Evidencing Triable Issues of Fact .....................................29

a. Dr. Rappaort’s Conclusions from the Psychological Evaluation is Rejected............................................29

b. No Genuine Issue of Material Fact Exists Even When Considering Dr. Rappaport’s Report..................32

B. Other Unresolved Issues Pending ................................................................................................................34

1. Respondent’s Reconsideration Motion ........................................................................................................34

2. Respondent’s Response to the February 5, 2004 Order and Request for Scheduling Conference ................38

III. CONCLUSION ....................................................................................................................................................39

V. ORDER..................................................................................................................................................................39

i 
I. PRELIMINARY STATEMENT

In discharge of its duty to promote the safety of life and property at sea, the United States 

Coast Guard (“Coast Guard” or “Agency”) initiated this administrative action seeking revocation

of the Merchant Mariner’s License (“License”) and Merchant Mariner’s Document 

(“Document”) issued to Respondent Eric Norman Shine. This action was brought pursuant to 

the legal authority contained in 46 United States Code (“U.S.C.”) 7703, and was conducted in 

accordance with the procedural requirements of 5 U.S.C. 551-559, 46 CFR Part 5, and 33 CFR 

Part 20.1

 

On March 6, 2003, Respondent Shine was charged with mental incompetence. The 

factual allegations in the Coast Guard’s complaint are: “Respondent is medically incompetent 

due to a major depressive disorder or other psychiatric condition.” The Coast Guard further 

alleged that Respondent Shine acted under the authority of his License and Document, while 

mentally incompetent on three separate occasions: 2

1) Between March 6, 2001 and June 11, 2001, by serving as a Third Engineer and/or 

Second Engineer aboard the vessel MAUI as required by law or regulation; 

2) Between December 2, 2001 and January 5, 2002, by serving as a Third Engineer 

aboard the vessel PRESIDENT JACKSON as required by law or regulation; and 

3) From January 5, 2002 until present, while engaged in matters concerning his License 

and Document. 

 1 While this case was pending, the United States Coast Guard transferred from the Department of Transportation to

the Department of Homeland Security. Pursuant to the Savings Provision of HR 5005 § 1512 (PL 107-296), 

pending proceedings are continued notwithstanding the transfer of the Agency. 

2

 In this decision, the phrases “medically incompetent” and “mentally incompetent” are considered synonymous. 

Although the complaint is inartfully worded, “[f]indings leading to an order of . . . revocation may be made so long

as the [respondent] has actual notice and the questions are litigated.” Appeal Decision 2578 (CALLAHAN) (1996); 

Appeal Decision 2422 (GIBBONS) (1986) (citing Kuhn v. Civil Aeronautics Board, 183 F.2d 839 (D.C. Cir 1950). 

Here, the record clearly shows that Respondent Shine knew and understood which act constituted the basis of the 

incompetence charge; namely, his major depressive disorder while serving aboard various vessels in 2001 and 2002,

and his continued mental health condition. This is the issue that has been highly contested throughout the 

proceeding, despite the inartfully worded complaint. 

1 
On June 26, 2003, the Respondent filed an Amended Answer denying the jurisdictional 

and factual allegations, and he asserted thirty-seven Affirmative Defenses.3 If the charge of 

incompetence is proven by preponderant evidence, the only available sanction under law is 

REVOCATION. See Appeal Decision No. 2181 (BURKE) (1980); 46 CFR 5.61(a)(9) & 5.569. 

Throughout this entire proceeding, the Respondent failed to comply with Discovery 

Orders issued on July 1, 2003 and August 4, 2003 directing him to produce medical and 

psychological records. The Respondent also vigorously challenged the undersigned’s Orders 

issued on July 30, 2003, August 4, 2003, and September 8, 2003 directing him to submit to a 

psychological examination. The Respondent was repeatedly warned that the sanction for failure 

to comply with the judge’s Orders was quite severe and could result in an adverse inference 

being drawn.4

 Yet, the Respondent continued to object to discovery. The Respondent maintains 

that his present mental state is irrelevant; he asserts privilege; and he argues that the Orders 

requiring him to produce medical/psychological records and the Orders directing him to submit 

to a psychological examination constitute a violation of his rights to privacy and due process.5 

 3

 Respondent’s Affirmative Defenses 1, 6, 7, 30-32, and 34 allege the Coast Guard, the Administrative Law Judge

(ALJ), and the Department of Homeland Security lack jurisdiction and authority to adjudicate this matter. These 

Affirmative Defenses were rejected in Orders dated July 9, 2003 and September 9, 2003. Likewise, Affirmative 

Defenses 3 and 5, concerning the defectiveness of the complaint due to lack of specificity, were rejected in the July 

9, 2003 Order described above and in an August 12, 2003 Order.3

 Respondent’s Affirmative Defenses 11, 12, and

29, concerning alleged improper filing of the complaint in favor of a party in a maritime labor controversy, were 

rejected in a separate Order dated September 9, 2003. In that same order, Respondent’s Affirmative Defense 35 and 

36, alleging that this administrative action is barred by the statute of limitations and doctrine of laches, were 

rejected. Among other things, Respondent’s Affirmative Defense 2, 8, 9 were rejected in an Order dated September 

10, 2003. To ensure a full and complete record, the Respondent’s remaining Affirmative Defenses will be addressed

in the body of this Order. 

4

 See Order Denying Reconsideration of Medical and Psychological Records (Aug. 4, 2003); Order [Concerning

Psychological Examination] (Aug. 4, 2003); Final Order Directing Psychological Examination (Sept. 8, 2003). 

2 

5

 See Opposition to USCG’s Request for Issuance of Subpoenas and/or the Acquisition of Respondent’s 

Medical/Psychological Records (June 25, 2003); Objection to Motion for Mental Health Examination (July 16, 

2003); [Respondent’s] Motion for Reconsideration of Order Regarding Production of Medical and Psychological

Records (July 31, 2003); Respondent’s Response to Court Order Regarding Psychological Examination (Aug. 1,

2003); [Respondent’s] Motion for Order Precluding Psychological Records and Testimony at Hearing (Aug. 5, 

2003); [Respondent’s] Motion for Reconsideration of the Court’s Order of August 4, 2003 Concerning

Footnote continued on next page 
 

Further, the Respondent has employed every imaginable ploy to prevent release of his 

medical and psychological records, and has vigorously fought to avoid submitting to a 

psychological examination as directed by the undersigned. As a matter of fact, the Respondent 

went so far as seeking a Temporary Restraining Order and Preliminary Injunction from the U.S. 

District Court for the Southern District of California, which, if granted, would have nullified the 

undersigned’s Final Order dated September 8, 2003 regarding the Psychological Examination by 

Dr. Ansar Haroun.6

 

Thereafter, on September 18, 2003, the Respondent appeared for the psychological 

examination accompanied by his attorney of record and a videographer. The Respondent would 

only consent to the examination if the interview was videotaped and his attorney was present. 

Dr. Haroun advised the Respondent that the facility was a county mental clinic that only sees 

patients pursuant to a court order and no judge has forced such an accommodation on the clinic 

over the past sixteen years.7

 Dr. Haroun explained, “that introducing such distracters (outside 

parties like attorneys or video technicians, or video equipment) may interfere with the interview, 

and result in opinions that are not valid.” Dr. Haroun stressed that he is “ethically obligated to 

conduct the interview in a manner that minimizes any threats to validity and, therefore, cannot 

permit the presence of attorneys, video-technicians or video equipment.” After two failed 

Psychological Exam (Aug. 6, 2003); Reply Memorandum of Respondent Eric Shine in Support of Motion for

Reconsideration of the Court’s Order August 4, 2003 Concerning the Psychological Exam (Aug. 12, 2003);

[Respondent’s] Motion for Order Precluding Use of Medical Records for any Purpose (Aug. 15, 2003); Reply

Memorandum of Respondent Eric Shine in Support of Motion for Reconsideration of the Court’s Order August 4,

2003 Concerning the Psychological Exam (Aug. 18, 2003); [Respondent’s] Brief Regarding Burden of Proof and 

Psychological Examination (Aug. 25, 2003). 

6

 Respondent Shine filed his Motion for Temporary Restraining Order and Preliminary Injunction on September 12,

2003. The Southern District Court of California dismissed the case for lack of subject matter jurisdiction on

September 24, 2003. 

7

 Dr. Haroun’s explanation as to why the examination did not occur was fully discussed in a letter to the undersigned

Judge dated September 18, 2003. 

3 
attempts to contact the undersigned at his Alameda office, Respondent departed without having 

the psychological examination as ordered. At no time between the issuance of the September 8, 

2003 Order and the September 18, 2003 appointment date, did Respondent’s counsel file a 

motion for leave to be present or to videotape the psychological examination. Nor did 

Respondent’s counsel attempt to contact the undersigned on his cell phone number even though 

the parties had been previously provided said number on multiple occasions. 

In light of the Respondent’s continuous refusal to submit to a psychological evaluation 

and his refusal to produce all required medical records, an Order and Notice of Failure to 

Comply was issued on September 23, 2003. Therein, the undersigned found that the 

Respondent’s actions constituted a failure or refusal to undergo a psychological examination as 

directed. As a result, an inference was drawn in accordance with 33 CFR 20.1313 that the results 

of the examination would be adverse to the Respondent. This Judge also found that 

Respondent’s failure to produce medical and psychological reports, as directed in past Discovery 

Orders, resulted from the Respondent’s attempt to conceal damaging evidence in this 

proceeding.8

 Consequently, pursuant to 33 CFR 20.607, it was found that all such medical and 

psychological records would be adverse to the Respondent. 

Where a mariner’s mental capacity is at issue, the law is clear with respect to the Coast 

Guard and this judge’s authority to require production of medical/psychological records under 33 

CFR 20.604 and the judge’s authority to order a psychological examination under 33 CFR 

20.1313. Thus, when so ordered, the Respondent has two choices once his mental competence is 

deemed relevant in a Coast Guard administrative proceeding. He can (1) produce all court 

ordered medical/psychological records and submit to a psychological examination or (2) face an 

4 
adverse inference being drawn against him. See 33 CFR 20.607(a) and 20.1313. Here, the 

Respondent felt so strongly that he would not allow the government to review his medical 

records nor would he submit to a psychological examination, which is his right. See Prehearing 

Conference Transcript, at p. 48 (San Diego, Ca. Jun 3, 2003)(Respondent would not sign a 

waiver for the release of his medical records). However, he cannot stand behind his limited right 

to privacy and still retain his privilege of holding a Coast Guard issued License and Document. 

The Coast Guard does not take it upon itself to seek out persons on whom to bestow a 

merchant mariner’s document or license. Rather it is the applicants who must convince the 

Agency that they possess all necessary qualifications and meet the Agency’s requirements. See

46 CFR 10.101, 10.201, 12.01-1, and 12.02-4. However, once the Agency grants or renews a 

license, a legally protected property interest is vested in the license holder. See John H. Reese, 

ADMINISTRATIVE LAW DESK REFERENCE FOR LAWYERS 167-168 (2003). In turn, the license 

may not be suspended or revoked without due process proceedings, whereby the Agency must 

afford the holder of a license a fair opportunity to confront the Agency and contest its claim. See

5 USC 558(c); see also id. at 168. 

While it is clear that the Respondent has a property interest in his license and document, 

the question remains what process is due? See Morrisey v. Brewer, 408 U.S. 471, 481 (1972); 

see also Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970). The fact that there is a right to a 

hearing does not necessarily mean that a full trial-type hearing is mandated. See Jacob A. Stein, 

et. al., ADMINISTRATIVE LAW, § 32.02(1), at 32-37 (2003). Some governmental benefits may be 

administratively terminated without affording the recipient a pre-termination evidentiary hearing. 

 8

 On July 1, 2003, an Order was issued directing the Respondent to produce all medical and psychological records. 

On August 4, 2003, an Order Denying Reconsideration of the July 1, 2003 Order was issued. 

5 
See Goldberg, 397 U.S. at 263; see also Matthews v. Eldridge, 424 U.S. 319, 340 (1976). 

Contrary to Respondent Shine’s argument in this case, due process simply does not require an 

administrative agency to hold an evidentiary hearing where there are no disputed material issues 

of fact or when the dispute can be adequately resolved from the paper record. See Reese, 

ADMINISTRATIVE LAW DESK REFERENCE FOR LAWYERS 168; see also Pennsylvania v. Riley, 84 

F.3d 125, 130 (3rd Cir. 1996); Paige v. Cisneros, 91 F.3d 40, 44 (7th Cir. 1996); Puerto Rico

Aqueduct and Sewer Authority v. U.S. EPA, 35 F.3d 600, 605-06 (1st Cir. 1994), cert. denied

513 U.S. 1148 (1995); Veg-Mix v. USDA, 832 F.2d 601, 607-08 (D.C. Cir. 1987); Consolidated

Oil & Gas, Inc. v. FERC, 806 F.2d 275, 279 (D.C. Cir. 1986). 

In this case, the Coast Guard filed a Motion for Summary Decision (“Summary Decision 

Motion”), asserting that there is no genuine issue of material fact that the Respondent suffers 

from a major depressive disorder or other psychiatric condition that renders him incompetent.9

 

The Summary Decision Motion included thirty-three (33) attachments, which contained 

supporting non-medical and medical documentary evidence. In his reply brief submitted on 

October 1, 2003, the Respondent does not deny that he suffers from a major depressive disorder. 

Instead, Respondent Shine disputed that the depressive disorder renders him incompetent and 

attached a medical report from Dr. Richard Rappaport for support. On October 3, 2003, the 

Coast Guard filed a Reply to the Respondent’s Opposition, and the Respondent filed another 

response on October 7, 2003. 

After complete review of the parties’ submissions, on November 20, 2003, the 

undersigned judge notified the parties of his intent to grant the Coast Guard’s Motion for 

Summary Decision. To ensure that the record is full and complete, the undersigned further 

 9

 The motion was filed on September 10, 2003 and was titled “Contingent Motion for Summary Judgment.” 

6 
ordered the Respondent and his counsel to submit a detailed brief of any and all alleged 

substantive errors that the Respondent will assert on appeal. The Respondent filed his Response 

on December 2, 2003 in which he listed thirty-seven (37) issues to be raised on appeal. The 

undersigned addresses each of the Respondent’s proposed arguments for appeal in Appendix A. 

By this Order, the factual and legal issues surrounding the Coast Guard’s Summary 

Decision Motion and the Respondent’s Opposition will be addressed. This Order will also 

address certain unresolved issues pending in this proceeding. I note that none of the unresolved 

issues create a genuine issue of material fact concerning Respondent Shine’s mental competence. 

Nevertheless, the unresolved issues will be discussed below in order to ensure that the

administrative record is complete. 

II. DISCUSSION

A. Coast Guard’s Motion For Summary Decision

1. Legal Standard of Review of the Motion for Summary Decision

Summary decision is a well accepted and commonly used procedural device in 

administrative agencies, whereby the government disposes of a controversy on the pleadings 

without an evidentiary hearing. See Reese, ADMINISTRATIVE LAW DESK REFERENCE FOR

LAWYERS 168; see also Pennsylvania, 84 F.3d at 130; Paige, 91 F.3d at 44; Puerto Rico

Aqueduct and Sewer Authority, 35 F.3d at 605-06; Veg-Mix, 832 F.2d at 607-08; Consolidated

Oil & Gas, Inc., 806 F.2d at 279. The standard of review of a summary decision motion is set 

forth in 33 CFR § 20.901. Title 33 CFR 20.901 provides in pertinent part: 

(a) Any party may move for a summary decision in all or any part of the proceeding on 

the grounds that there is no genuine issue of material fact and 

that the party is entitled to a decision as a matter of law... . 

(b) The ALJ may grant the motion if the filed affidavits, the filed documents, the 

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

7 
no genuine issue of material fact and that a party is entitled to a summary decision as a matter of 

law. 

The motion may be made as to some or all the claim in order to find that “as a matter of law” the 

moving party should prevail. See Charles H. Koch, Jr., ADMINISTRATIVE LAW AND 

PRACTICE § 8.22[5], at 483 (2d ed. 1997). 

In an administrative context, the standard of review of a summary decision motion is 

inextricably linked to Rule 56(c) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) 

(governing review of a summary judgment motion).10 See Puerto Rico Aqueduct, 35 F.3d at 

607. A judge “will generally grant summary [decision] if the pleadings and papers filed by the 

parties establish, without substantial dispute, facts that entitle the movant to judgment as a matter 

of law.” See Ernest Gelhorn & William F. Robinson, Jr., Summary Judgment in Administrative 

Adjudication, 84 Harv. L. Rev. 612, 613 (Jan. 1971). All competing inferences or reasonable 

doubts as to whether a genuine issue of material fact exists are viewed in a light most favorable 

to the non-moving party (i.e., the Respondent). See Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 255 (1986). The moving party (i.e., the Coast Guard) bears the initial burden of identifying 

those portions of the pleadings, the material obtained by discovery or otherwise, or other material 

contained in the record that show an absence of a genuine issue of material fact. See generally

33 CFR 20.901(b); see also Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 251-55; Celotex Corp.

v. Catrett, 477 U.S. 317, 322-24 (1985). 

 10 See Fed. R. Civ. P. 56(c), which states in pertinent part: 

. . . [Summary] [J]udgment shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine 

issue of material fact and that the moving party is entitled to judgment as a matter of law. . . . 

(Emphasis added). 

8 
Here, the Coast Guard is entitled to the benefit of an adverse inference due to 

Respondent’s failure to comply with the discovery orders and the Respondent’s failure to submit 

to psychological examination. However, an adverse inference alone is insufficient to support a 

summary decision motion. See Financial Federal Saving and Loan Assoc. v. Savings Investment 

Service Corp., No. Civ-86-176-W, 1986 WL 641, at *5 (W.D. Okla Dec. 11, 1986); National

Acceptance Company of America v. Bathalter, 705 F.2d 924, 932 (7th Cir. 1983). The Coast 

Guard, as the moving party, is still required to provide adequate evidentiary support for its 

summary decision motion in order to prevail. See id. 

Once the moving party proves that there exists no genuine issue of material fact, the 

burden shifts to the non-moving party to identify specific facts evidencing triable issues of fact. 

See 33 CFR 20.901(c); see also Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 251-55; Celotex

Corp, 477 U.S. at 322-24. The Supreme Court has defined the type of factual issue that would 

preclude summary judgment. In Anderson, the Court held: 

“[T]he mere existence of some alleged factual dispute between the parties will not defeat 

an otherwise properly supported motion for summary judgment; the requirement is that 

there be no genuine issue of material fact. As to materiality, the substantive law will 

identify which facts are material. Only disputes over facts that might affect the outcome 

of the suit under the governing law will properly preclude the entry of summary 

judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” 

477 U.S. at 248. Ultimately, the judge must determine whether the pleadings, affidavits, and 

other documentary evidence in the record are such that a hearing would serve no useful purpose 

because judgment as a matter of law in favor of the moving party is clear. 

Viewing the documentary evidence in a light most favorable to Respondent Shine, I find 

that the Coast Guard is entitled to judgment as a matter of law on the basis of the record. As 

stated earlier, Respondent Shine does not deny that he suffers from a major depressive disorder, 

but rather disputes whether the depressive disorder constitutes incompetence, which would 

9 
justify revocation of his Merchant Mariner’s License and Document. To preclude the entry of 

judgment in favor of the Coast Guard, the Respondent argues that: 1) the Coast Guard’s motion 

for summary decision is procedurally defective because no date has been set for the hearing on 

the motion and the Coast Guard failed to attach affidavits to the motion for summary decision as 

required by 33 CFR 20.901; 2) the contents of his medical/psychological records are privileged 

and are afforded privacy under the Constitution and he objects to the psychological examination 

ordered by the judge in this proceeding; 3) the documentary attachments supporting the Coast 

Guard’s motion for summary decision are irrelevant, unreliable, and do not establish that Mr. 

Shine is currently mentally incompetent; 4) Dr. Rappaport’s psychological evaluation dated 

September 30, 2003 is the most recent evidence of Respondent’s mental state and shows that Mr. 

Shine is mentally competent. For reasons stated below, Respondent Shine’s arguments are 

rejected. 

2. The Coast Guard’s Motion for Summary Decision is not Procedurally Defective

10

The Respondent’s argument that the Coast Guard’s Summary Decision Motion is 

procedurally defective is without merit. The Coast Guard’s Motion for Summary Decision was 

properly filed. Contrary to Respondent’s assertion, 33 CFR 20.901 does not require that a fixed 

date for a hearing on the merits be set nor is a hearing date on the Motion for Summary Decision 

required. Section 20.901(a) provides, in pertinent part, a “party must file the motion [for 

summary decision] no later than 15 days before the date fixed for the hearing.” 33 CFR 

20.901(a) (emphasis added). This section establishes a time limit for filing a summary decision 

motion. Section 20.901(a) also provides the ALJ with discretion as to whether to hold a hearing 

on the motion for summary decision. The language states, “The ALJ may set the matter for 

argument and call for submission of briefs.” 33 CFR 20.901(a) (emphasis added). In no way 

does Section 20.901 impose or mandate that a fixed date for hearing on the merits be set or that a 
hearing date on the Motion for Summary Decision be established. The arguments of 

Respondent’s counsel are simply untenable. 

Likewise, I am not persuaded by Respondent’s argument that the Coast Guard’s Motion 

for Summary Decision is defective because the Coast Guard failed to file affidavits as to such 

matters as would be admissible in evidence and has not shown that the affiant is competent to 

testify. Section 20.901 does not require that supporting affidavits be submitted with the motion 

for summary decision. The relevant portion of the regulation provides that a party “MAY

include supporting affidavits with the motion.” 33 CFR 20.901(a). This means that the decision 

whether to include affidavits with the summary decision motion is left to the discretion of the 

moving party. The inclusion of affidavits with the summary decision motion is not mandatory as 

Respondent’s counsel suggests. Thus, a summary decision motion cannot be defeated merely 

because a moving party failed to file affidavits to the motion. 

Moreover, Section 20.901(c), which Respondent counsel relies upon, does not support his 

position. Indeed, when Section 20.901(c) is read in conjunction with Section 20.901(a), it is 

clear that the drafters of the regulation merely intended to establish criteria for affidavits if a 

party chose to include supporting affidavits with its Motion for Summary Decision. 

Furthermore, the language contained in paragraph (b) supports this interpretation of Section 

20.901. In paragraph (b), the drafters provided a non-exhaustive, non-exclusive list of 

documents the ALJ may rely on in ruling on a summary decision motion. Those documents 

include filed affidavits, the filed documents, the material obtained by discovery or otherwise, or 

matters officially noticed. See 33 CFR 20.901(b). 

I find that the supporting documents attached to the Coast Guard’s Motion for Summary 

Decision were submitted in accordance with 33 CFR 20.901. I also find that the motion is not 

11
defective because the Coast Guard entitled it a “Contingent Motion.” The motion was 

contingent based on the Respondent’s failure to undergo psychological examination and to 

produce psychological/medical records as ordered by the undersigned. There is no prejudice to 

Respondent and the undersigned does not see how Respondent was prejudiced because the Coast 

Guard made the motion contingent on the failure to undergo psychological examination and 

failure to produce psychological/medical records. If anything, the motion placed the Respondent 

on notice that the Coast Guard intended to seek summary decision based on the repeated refusals. 

Accordingly, the Respondent’s arguments, that the Motion for Summary Decision is defective or 

that the motion was improperly filed, are rejected. 

3. Federal Regulations and Case law unequivocally required the Respondent to turn 

over his medical records and submit to a psychological examination

As I previously stated in the September 8, 2003 Final Order Directing Respondent to 

undergo a Psychological Examination, physician-patient privilege does not apply in Coast Guard 

suspension and revocation proceedings. See 46 CFR 5.67.11 In the aforementioned order, I 

further found that the Coast Guard’s policy against the applicability of physician-patient 

privilege to suspension and revocation proceedings applies with equal force to mental health 

professionals, such as psychologists, psychiatrists, and social workers. See also Actions Against 

Seamen’s Licenses, Certificates, or Documents, 50 FR 32719 (Aug. 9, 1985) (to be codified at 

46 CFR pt. 5). Thus, Respondent’s assertion of privilege with respect to his 

medical/psychological records is unavailing. Therefore, the undersigned was authorized to order 

Respondent Shine to produce his medical/psychological records pursuant to 33 CFR 20.604 and I 

 11 Title 46 CFR 5.67 reads as follows: 

For the purpose of these proceedings the physician-patient privilege does not exist between a physician and

a respondent. 

12
had the authority under 33 CFR 20.607(a) to draw an adverse inference based on Mr. Shine’s 

failure to provide or permit discovery of his medical/psychological records. 

I also noted in the September 8, 2003 Final Order Directing Respondent to undergo a 

Psychological Examination that an ALJ is authorized to order the medical examination of a 

respondent in any proceeding in which the physical or mental condition of the respondent is 

relevant and the failure for a respondent to undergo such examination may give rise to an adverse 

inference. See 33 CFR 20.1313. More specifically, 33 CFR 20.1313 provides in pertinent part: 

In any proceeding in which the physical or mental condition of the respondent is relevant, 

the ALJ may order him or her to undergo a medical examination. Any examination 

ordered by the ALJ is conducted, at Federal expense, by a physician designated by the 

ALJ. If the respondent fails or refuses to undergo any such examination, the failure

or refusal receives due weight and may be sufficient for the ALJ to infer that the 

results would have been adverse to the respondent. 

(Emphasis added). Thus, upon the Coast Guard’s showing of “good cause” based on the nonmedical as well as the medical documentary evidence, I had the authority to order Respondent 

Shine to undergo psychiatric/psychological examination. 

While it is true that access to Mr. Shine’s medical/psychological records and the 

psychological examination ordered in this case are subject to his constitutional right of privacy, 

such protection is not absolute. See United States v. Westinghouse Electric Corp., 638 F.2d 570, 

577-78 (3d Cir. 1989); United States v. Mazzola, 217 F.R.D. 84, 88 (D. Mass. 2003); United

States v. Colletta, 602 F. Supp. 1322, 1327 (E.D. Pa. 1985).12 “[C]ourts and legislatures have 

determined that public health or other public concerns may support access to facts that an 

individual might otherwise choose to withhold” even when the disclosure may reflect 

unfavorably on the character of that individual. Westinghouse, 638 F.2d at 577-78. The “right 

 12 Although Mazzola and Colletta are both criminal cases, the principle that the constitutional right of privacy is not

absolute applies with equal force in these proceedings. 

13
to privacy is a conditional [or qualified] right that can be overcome if the government can 

demonstrate a substantial interest that outweighs the [Respondent’s] right to privacy.” See

Grosso v. Town of Clarkston, No. 94 CIV. 722 (JGK), 1998 WL 566814, at *6 (S.D.N.Y. Sept. 

3, 1998)(citing Whalen v. Roe, 429 U.S. 589, 602 n. 29 (1977)). 

The Third Circuit in Westinghouse set forth “[t]he factors which should be considered in 

deciding whether an intrusion into an individual’s privacy is justified. 638 F.2d at 578. The 

factors include: 

[T]he type of record requested, the information it does or might contain, the potential for 

harm in any subsequent nonconsensual disclosure, the injury from disclosure to the 

relationship in which the record was generated, the adequacy of safeguards to prevent 

unauthorized disclosure, the degree of need for access, and whether there is an express

statutory mandate, articulated public policy, or other recognizable public interest 

militating toward access.

Westinghouse, 638 F.2d at 578. 

Under the facts of this case, the Westinghouse factors are easily satisfied. The purpose of 

Coast Guard suspension and revocation proceedings is to ensure the safety of life and property at 

sea. See 46 U.S.C. 7701(a). There is a strong public policy embodied in the Coast Guard law 

and regulations for removing incompetent mariners from serving aboard vessels. See e.g. 46 

U.S.C. 7703(1)(B) (authorizing proceeding against a license or document if the holder commits 

an act of incompetence); 46 CFR 5.61(a)(9) (authorizing an investigating officer to seek 

revocation when incompetence is found proved); 46 CFR 5.569(d) (providing that the only 

proper order for incompetence is revocation); 46 CFR 5.201 (permitting a holder to voluntarily 

deposit a license or document with the Coast Guard where there is evidence of mental or 

physical incompetence); See also Appeal Decision 2417 (YOUNG) (1985) (citing Appeal

Decision 2181 (BURKE), modified sub nom. Commandant v. Burke, NTSB No. EM-83 (1980)) 

(holding that “No one who is suffering from a psychiatric disability should be permitted ‘to serve 

14
aboard any vessel . . . in a capacity in which he could cause serious harm to himself, to others, 

or to the vessel itself.”). 

Title 5 CFR 5.31 defines Incompetence as the “inability . . . to perform required duties,

whether due to professional deficiencies, physical disability, mental incapacity, or any 

combination thereof.” (Emphasis added). Based on the allegations in the Coast Guard’s 

complaint, the medical/psychological reports and the psychological examination are 

unquestionably relevant and material to the issue herein. See generally 33 CFR 20.802. The 

substantial governmental interest here is to prevent mentally incompetent individuals who 

perform safety sensitive job duties from boarding vessels and endangering the ship and/or it’s 

crew. By refusing to provide or permit discovery of medical/psychological records and by 

refusing to undergo a psychological examination, the Respondent could obstruct legitimate 

attempts by the Coast Guard to remove incompetent mariners from the sea and thereby expose 

other mariner’s to potential harm. Thus, the Respondent’s conditional right to privacy is 

outweighed by the substantial governmental interest that is narrowly tailored to insure the safety 

of life and property at sea. 

Moreover, the medical information that the Coast Guard seeks would be afforded 

adequate protection after it is entered into evidence in this proceeding. As I pointed out to the 

Respondent and his counsel, 33 CFR 20.606 provides that the judge can issue a protective order. 

The Respondent’s personal privacy interests are also protected by Exemption 6 of the Freedom

of Information Act (“FOIA”), as amended and codified in 5 U.S.C. 552(b)(6), and the Privacy 

Act, as amended and codified in 5 U.S.C. 552a. FOIA Exemption 6 authorizes an agency to 

withhold all information about an individual contained in medical files when the disclosure of 

such information “would constitute a clearly unwarranted invasion of personal privacy.” See 5 

15
U.S.C. 552(b)(6). 13 The Privacy Act strictly prohibit an agency from disclosing records

14 to 

any person or another agency without written notice or consent of the individual to whom the 

record pertains unless the disclosure of the record falls within one of the twelve exceptions. See

5 U.S.C. 552a(b).15 Thus, I find that the applicable law and regulations afford Respondent Shine 

 13 FOIA generally requires federal agencies to disclose agency records to the public unless the agency can establish 

that the material qualifies as an exemption. See 5 U.S.C. 552; see also Chilivis v. Securities and Exchange Comm., 

673 F.2d 1205, 1210-1211 (11th Cir. 1982). “[T]he term ‘agency records’ . . . covers not only documents created

by the agency but also documents submitted to the agency for use in carrying out its duties.” See General Elec. Co. 

v. Nuclear Regulatory Commision, 750 F.2d 1394, 1400 (7th Cir. 1984). The exemption for medical files is found in

5 U.S.C. 552(b)(6), which provides in relevant part:

(b) This section does not apply to matters that are – 

* * *

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly 

unwarranted invasion of privacy;

(Emphasis added). 

14 “[T]he term ‘record’ means any item collection, or grouping of information about an individual that is maintained

by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or 

employment history and that contains his name, or the identifying number, symbol, or other identifying particular 

assigned to the individual.” 5 U.S.C. 552a(a)(4) (emphasis added). 

15 Title 5 U.S.C. 552a(b) provides in pertinent part: 

(b) Conditions of disclosure. – No agency shall disclose any record which is contained in a system of 

records by any means of communication to any person, or to another agency, except pursuant to a 

written request by, or with the prior written consent of, the individual to whom the record pertains, 

unless disclosure of the record would be – 

(1) to those officers and employees of the agency which maintains the record who have a need for 

the record in the performance of their duties; 

(2) required under section 552 of this title; 

(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection 

(e)(4)(D) of this section;

(4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or

related activity pursuant to the provisions of title 13;

(5) to a recipient who has provided the agency with advance adequate written assurance that the 

record will be used solely as a statistical research or reporting record, and the record is to be

transferred in a form that is not individually identifiable; 

(6) to the National Archives and Records Administration as a record which has sufficient 

historical or other value to warrant its continued preservation by the United States 

Government, or for evaluation by the Archivist of the United States or the designee of the 

Archivist to determine whether the record has such value; 

16

(7) to another agency or to an instrumentality of any governmental jurisdiction within or under 

the control of the United States for a civil or criminal law enforcement activity if the activity 

is authorized by law, and if the head of the agency or instrumentality has made a written 

Footnote continued on next page 
maximum protection from unauthorized disclosure of his medical/psychological records and the 

results of the psychological/psychiatric examination ordered in this proceeding. In American

Fed’n of Gov’t Employees vs. Department of Housing and Urban Dev. 118 F.3d 786, 793 (D.C. 

Cir 1997), the court held that an individual’s interest in protecting privacy of information is 

significantly less important where the information released is obtained by the government but not 

disseminated publicly. As such, I find that the Respondent’s conditional right to privacy is 

outweighed by the substantial governmental interest that is narrowly tailored to ensure the safety 

of life and property at sea. 

This is especially true given the fact that Coast Guard regulations and publications have 

long since held that individuals must be physically qualified to hold merchant mariner’s licenses 

and documents. See 46 C.F.R. Parts 10 and 12; see also Navigation and Vessel Inspection 

Circular No. 2-98 (1998). For example, 46 C.F.R. Parts 10 and 12 provide general requirements 

for the issuance and renewal of all licenses and certificates of registry. Specifically, mariners 

applying for an original license, raise in license grade, or renewal of license, must submit to a 

physical examination and establish that they possess all necessary qualifications, such as 

physical health and competence. See 46 C.F.R. 10.201(a), 12.02-27(d), 12.05-5; 12.15-5. More 

 

request to the agency which maintains the record specifying the particular portion desired and 

the law enforcement activity for which the record is sought; 

(8) to a person pursuant to a showing of compelling circumstances affecting the health or safety

of an individual if upon such disclosure notification is transmitted to the last known address of 

such individual;

(9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee 

or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint 

committee;

(10)to the Comptroller General, or any of his authorized representatives, in the course of the 

performance of the duties of the General Accounting Office;

(11) pursuant to the order of a court of competent jurisdiction; or

(12) to a consumer reporting agency in accordance with section 3711(f) of title 31. 

17
importantly, all applicants must demonstrate that they have no physical impairments or medical 

conditions that would render them incompetent to perform their ordinary duties. See 46 C.F.R. 

§§ 10.205(d), 10.207(e), 10.209(d), 12.02-27(a), 12.02-27(d), 12.05-3(a)(2) and 12.05-5(a). 

Although Coast Guard regulations do not list specific physical conditions that would 

disqualify an applicant from holding a merchant marine document or license, the Agency 

provides guidelines for evaluating a mariner’s eligibility in its published Navigation and Vessel 

Inspection Circular (“NVIC”). See NVIC No. 2-98 (1998). The guidelines published in the 

NVIC are consistent with Regulation I/9 of the International Convention of Standards of 

Training, Certification, and Watchkeeping for Seafarers (STCW), which requires each 

participant to establish standards of medical fitness for seafarers. See id. The United States is a 

signatory to the STCW. Once more, the medical standards listed in the NVIC are tantamount to 

the United States’ standards for meeting the STCW regulations. See id. 

The physical standards that an applicant must meet before a merchant mariner document 

or license is either issued or renewed are summarized in the NVIC. In particular, the NVIC 

provides that a condition requiring the use of psychotropic medication, suicidal behavior, or a 

diagnosis of a primary psychosis is considered a potentially disqualifying condition. See id. The 

NVIC further provides that any other medication or therapy, which might compromise shipboard 

safety or result in the gradual deterioration of a mariner’s ability to perform his duties, 

constitutes a possible disqualifying condition. See id. 

It is clear from the evidence in this case that the Respondent currently suffers from a 

psychiatric condition that would affect his ability to serve at sea. Since the Respondent’s last 

employment aboard a vessel, he has been admitted to a mental health hospital, undergone 

continuous psychotherapy, and was diagnosed with a mental condition requiring the use of 

18
psychotropic medication. Most importantly, the record is devoid of any evidence to indicate 

that the Respondent’s mental condition has changed since that time. As such, according to the 

Coast Guard’s long established policy, the effects of a major depressive disorder constitute a 

potentially disqualifying condition. Accordingly, the Respondent’s position that the 

medical/psychological information sought in this proceeding is irrelevant and violates the law 

lacks rational underpinning. 

4. The Coast Guard has Satisfied its Burden of Proof

With respect to the merits of this case, Respondent Shine contends that the Coast Guard 

cannot sustain its burden of proof without first showing the Respondent committed a specific act 

of incompetence while acting under the authority of his license and/or document. The 

Respondent argues that a charge of incompetence must be based on a clear-cut act demonstrating 

“physical” or “mental” incompetence. The Respondent also argues that the act must have 

occurred at a time when the mariner served under the authority of his license onboard a seagoing 

vessel. Respondent Shine further contends that the Coast Guard cannot prove any credible 

evidence that he committed an “act,” which demonstrates mental incapacity during the time he 

sailed aboard the M/V MAUI or the M/V PRESIDENT JACKSON. Rather, the Respondent 

argues that the Coast Guard has improperly narrowed its inquiry into his post employment 

mental condition without reference to any acts related to shipboard activity. These same

arguments were raised in Affirmative Defenses 4, 15-28, and Respondent’s August 25, 2003 

Brief Regarding Coast Guard Burden of Proof. 

19

At the outset, Affirmative Defenses 19-28 are rejected. In those Affirmative Defenses, 

the Respondent argues that he did not commit any act of incompetence (either medical or 

mental) at any time while serving under the authority of his license aboard various vessels, 

including the SS MORMACSUN, TONSINA, and SEA-LAND DISCOVERY - - just to name a 
few. The complaint is only concerned with Respondent’s actions: a) aboard the MAUI between 

March 6, 2001 and June 11, 2001; b) aboard the PRESIDENT JACKSON between December 2, 

2001 and January 5, 2003; and from January 5, 2002 until present, while engaged in matters 

concerning his license and DOCUMENT. Accordingly, the Respondent’s arguments relating to 

other vessels upon which Mr. Shine served is deemed irrelevant and immaterial. 

The applicable regulations provide that a license, certificate of registry or merchant 

mariner’s document may be suspended or revoked if the holder, when acting under the authority 

of that license, commits an act of incompetence. See 46 U.S.C. 7701(a) and 7703(1)(B). Thus, 

to prevail, the Coast Guard must prove that Respondent: 

1) Is the holder of a license, certificate or registry, or document; who: 

2) When acting under the authority of that license, certificate of registry, or document; 

3) Committed an act of incompetence. 

See 46 U.S.C. 7703(1)(B). First, there is no dispute that Respondent holds a Coast Guard issued 

license and document. The issue is whether the Coast Guard has established the second and third 

elements of its burden of proof. I find that the Coast Guard has done so. 

a. The Coast Guard Proved Respondent was Acting Under the Authority

of His License/Document

A person is considered acting under the authority of their license or document if he/she is 

employed in the service of a vessel and his/her license or document is required either by law or 

regulation or by an employer. See 46 CFR 5.57(a); see also Appeal Decision 2615 (DALE); 

Appeal Decision 2393 (STEWART); Appeal Decision 2550 (RODRIQUES); Appeal Decision

2566 (WILLIAMS). Similarly, a person is considered to be acting under the authority while 

engaged in “official matters” regarding the license. This includes, but is not limited to, such 

activities as applying for renewal of a license or appearing at a hearing. See 46 CFR 5.57 (b). 

20
In this case, the Respondent’s employment aboard the vessels MAUI and PRESIDENT 

JACKSON satisfies the “condition of employment test.” The MAUI is a 24,544 gross ton oceangoing container ship whereas the PRESIDENT JACKSON is a 50,205 gross ton ocean-going 

container ship. Title 46 U.S.C. 8701(d) requires individuals serving on ocean-going vessels over 

100 gross tons to hold a Coast Guard issued document. Because this statute requires Coast 

Guard issued merchant mariner papers for service aboard the two ships, such service constitutes 

“acting under the authority.” See Appeal Decision 2371 (MCFATE) (interpreting the 

predecessor statute to 46 U.S.C. 8701 and 46 CFR 12.02-7). Further, the regulations (46 CFR 

5.57) clearly establish that the Respondent continues to act under the authority of his Coast 

Guard credentials throughout this administrative proceeding even though the Respondent’s 

employment onboard the vessels ceased after January 5, 2002. Thus, the Coast Guard has 

established that Respondent was acting under the authority of his license and/or document. 

b. The Coast Guard Proved Respondent is Mentally Incompetent and 

Unfit for Duty at Sea

The regulations authorize the Coast Guard to investigate and issue a complaint if

reasonable grounds exist to believe that the holder of a license may have committed an act of 

incompetence while acting under the authority of his license or document. See 46 CFR 

5.101(a)(1) and 5.105(a). Incompetence is defined as the “inability on the part of a person to 

perform required duties, whether due to professional deficiencies, physical disability, mental 

incapacity, or any combination of it.” See 46 CFR 5.31. In turn, a finding of mental 

incompetence must rest upon substantial evidence of a reliable and probative nature that the 

person charged suffers from a mental impairment of sufficient disabling character, which renders 

the person unable to safely perform his duties aboard a merchant vessel. See Appeal Decision

2417 (YOUNG). In fact, the act establishing mental incompetence need not be one directly 

21
involved in the performance of duty. Rather, it is enough that the conduct or behavior of a 

mariner be of the sort that would, if carried over to shipboard, endanger life or property. See

Appeal Decision 1466 (SMITH). 

The Respondent, however, contends that the mere state of being mentally incompetent 

does not constitute an “act” sufficient to revoke a mariner’s license. To support his position, the 

Respondent cites Appeal Decisions YOUNG and SMITH, in which the mariners committed 

specific acts such as killing another crewmember, creating a disturbance, and refusal to obey 

lawful orders. Contrary to this Respondent’s assertions, the Appellants in those cases were 

charged with both misconduct and incompetence. The specific acts in issue only supported the 

allegations of misconduct. The charge of incompetence, on the other hand, was based solely on 

the fact that those mariners were unfit to perform their duties at sea, either due to a previously 

diagnosed mental condition or a general display of questionable behavior. See Appeal Decision

2417 (YOUNG); see also, Appeal Decision 1466 (SMITH). 

A thorough review of Commandant Decisions on Appeal reveal that a finding of 

incompetence is not dependent on a specific act, but rather the sole act of serving onboard a 

vessel while suffering from either a physical or psychological impairment will support the charge

of incompetence. For example, in Appeal Decision 1502 (WILLIAMS), a finding of mental 

incompetence was supported by an appearance of erratic behavior exhibited by the Appellant, a 

history of hospitalization for a mental condition, and a subsequent psychological examination. 

The Appellant failed to properly perform his duties as a Radio Operator while serving onboard a 

seagoing vessel. Moreover, the Appellant exhibited an unfounded fear of bodily injury, distrust 

of others, suspicion of an intimidation campaign against him, and other similar feelings of 

distress. The evidence revealed there was no apparent reason for his neglect of duty or his fear 

22
of physical violence, and there had been no particular trouble on the voyage except with respect 

to the Appellant. As such, it was held that the Appellant's failure to conduct his job properly was 

due to his mental illness, which could not be blamed on other conditions on the ship. 

Commandant Decisions on Appeal have also upheld a finding of mental incompetence 

even when there was no diagnosis or history of psychological illness prior to serving onboard a 

vessel. In Appeal Decision 825 (PERKINS), a finding of mental incompetence was based on 

evidence of the Appellant’s irrational and unhygienic personal habits while living in close 

contact with the other crewmembers. While onboard the vessel, the Appellant was continuously 

dirty, both in person and clothing, and the Appellant habitually blew mucus from his nose 

directly to the deck in the mess hall. Due to these and other repulsive habits, the unlicensed 

personnel on the ship voted to exclude the Appellant from the mess hall during mealtimes. Also 

on the voyage, the Appellant was obsessed with the belief that his shipmates were plotting 

against him without provocation; he made completely fictitious statements to various persons in 

authority; he steered the ship more than 30 degrees off her course on numerous occasions; and 

Appellant caused an additional burden to be placed on his shipmates as he could not be trusted to 

perform the most simple tasks. 

Moreover, the Master of the vessel and twenty-two crewmembers in the PERKINS case

signed a petition containing some of the above facts. That petition protested against permitting 

the Appellant to continue his efforts to become a qualified merchant seaman and predicted that 

he would cause continuous trouble for everyone with whom he came in contact as a merchant 

seaman. It was the stated opinion of those who signed the petition that the Appellant was 

"completely unfit, mentally and physically, to go to sea and live in the close contact with other 

men which such a life required.” A subsequent psychological examination concluded that the 

23
Appellant was not fit for sea duty due to a "schizophrenic reaction, paranoid type." As such, the 

Appellant was found to be unfit for duty on merchant vessels by reason of his mental condition. 

It is of particular interest that mariners who possessed a medical or physical condition 

were similarly charged with incompetence without a showing that they committed a specific act 

of negligence or even that they failed to perform their duties properly. Rather, it was sufficient 

that the mariner’s medical condition posed a danger to safety. See Appeal Decision 1414

(BROWNE) (where Appellant suffered from periods of unconsciousness that occurred without 

warning at infrequent intervals); see also Appeal Decision 1720 (HOWELL) (where Appellant 

failed to posses the color sense required for a qualified member of the engine department); 

Appeal Decision 606 ADELMAN) (Appellant was found to be physically incompetent to 

perform his duties by reason of drug addition). These Decisions reveal that a finding of 

incompetence has been consistently upheld when a mariner’s medical condition presents a 

potential danger to the safety of life and properly at sea. See Appeal Decision 606

(ADELMAN); see also Appeal Decision 1414 (BROWNE). 

In the case at hand, Respondent Shine exhibited behavior onboard both the M/V MAUI 

and the M/V PRESIDENT JACKSON that demonstrates a lack of psychological well being to 

serve as an engineer. During the course of his employment aboard the PRESIDENT JACKSON, 

an investigation was conducted into the Respondent’s behavior following the receipt of several 

written complaints from officers and crewmembers. (Agency Attachments to Contingent Motion 

for Summary Decision “Attachment” 6, 10, 11, and 12). The results of the investigation were 

entered in the vessel’s official logbook. (Attachment 12). Any entry in an official logbook 

concerning an offense is admissible in evidence and constitutes prima facie evidence of the facts 

recited. See 33 CFR 20.1305(a). In this case, the logbook entry provides evidence of the 

24
Respondent’s confrontational and aggressive behavior. The logbook entry describes how the 

Respondent continuously intimidated and harassed the crew with threats of litigation. According 

to the logbook, the investigation found that Respondent Shine was repeatedly insubordinate and 

failed to follow lawful orders, which compromised the vessel’s safety. Of particular concern, the 

logbook entry concluded that the Respondent’s continued presence aboard the vessel created an 

un-seaworthy condition. (Attachment 12). 

Additional details regarding the Respondent’s disruptive behavior are provided in 

numerous letters submitted by the officers and crew aboard the PRESIDENT JACKSON. The 

First Assistant Engineer experienced an inability to direct and supervise the Respondent without 

fear of conflict. In an effort to avoid confrontation, Mr. Shine was assigned simple, long-term

projects. (Attachment 11). In addition, crewmembers feared interaction with the Respondent 

because of his constant harassment and threat of litigation. As a direct result of his intimidation 

tactics, the Respondent created a tumultuous work place that adversely affected the work 

performance of the crew. (Attachments 6, 10, and 11). Similarly, the Respondent’s performance 

onboard the MAUI mirrors that of the PRESIDENT JACKSON. In particular, the Matson 

Navigation Company Officer Evaluation Report completed by the Chief Engineer, Cecil D. Ray, 

describes how Respondent Shine lacked the necessary skills to perform his duties and possessed 

an overall inability to work with the other crewmembers. (Attachment 5). 

Because the safety of lives and the vessel depend on decisions made and actions taken in 

an instant, it is essential that the crew relies on and trusts one another. Moreover, in order for the 

ship to operate safely, all mariners must be capable of living and working together under 

confined conditions. In this case, the Respondent’s inability to work with crewmembers, and 

25
flagrant disregard for authority, hindered his ability to carry out the responsibilities and duties 

required of an engineer aboard seagoing vessels. 

The record shows that Respondent was obsessed with the belief that his crewmembers 

and former employers were retaliating against him for “doing the right thing;” he continuously 

harassed the crew with threats of litigation; his insubordination often created an unseaworthy 

condition; and he caused an additional burden to be placed on his shipmates as he could not be 

trusted to perform or complete his expected duties. In turn, the evidence revealed there was no 

apparent reason for his insubordination or his fear of being victimized, and there had been no 

particular trouble on the vessels except with respect to the Respondent. Indeed, there is 

substantial evidence on which to base the conclusion that the Respondent was completely unfit to 

live and work at sea under close contact with other crewmembers. 

While the Respondent’s mental unfitness for sea duty was clearly shown by his conduct 

aboard the MAUI and the PRESIDENT JACKSON, the issue of his present-day psychological 

well-being must be addressed. In order to support a finding of mental incompetence in this case, 

the Coast Guard’s evidence must not be limited in time to when the Respondent was actually 

employed on board a vessel. See Appeal Decision 2417 (YOUNG). Rather, the evidence 

presented must sufficiently show that the Respondent’s current condition at the time of these 

proceedings renders him unfit for service at sea. See Appeal Decision 1466 (SMITH); see also

Appeal Decision 2280 (ARNOLD); Appeal Decision 1838 (FORSYTH); Appeal Decision 2417

(YOUNG). 

Although the Respondent argues there is no evidence of mental incompetence subsequent 

to the Agency’s “fit for duty” declaration, a review of the entire record affirms the indisputable 

26
 

fact that Respondent Shine currently suffers from a major depressive disorder.16 Numerous 

psychotherapists have interviewed and counseled the Respondent for various lengths of time, 

dating as far back as June 2002 until the present. All of them have evaluated the Respondent and 

diagnosed him with various psychological disorders. However, it is the consensus of all these 

psychotherapists that Respondent Shine suffers from a major depressive disorder. 

Dr. Douglas Riddle first diagnosed the Respondent with major depression in June 2002. 

(Attachment 19). In August 2002, a disability insurance company requested information from

Dr. Riddle as to why the Respondent remained disabled from work longer than normal. 

(Attachment 32). In response, Dr. Riddle explained that repeated multiple stressors have 

prolonged Shine’s severe depression with significant impairment of his mood and behavior. Dr. 

Riddle further wrote that Mr. Shine was not able to engage in productive social interactions and 

remained unable to manage his mood sufficiently to work effectively. (Attachment 32). 

Likewise, in October 2002, Dr. Emad Tadros began treating the Respondent for a major 

depressive disorder. (Attachment 23). At that time, Dr. Tadros stated that it was his professional 

opinion that Mr. Shine was disabled from gainful employment. Dr. Tadros further listed the 

various types of medication the Respondent took on a daily basis as Effexor XR 300 mg and 

Depakote ER 250 mg. (Attachment 23). A few months later, Dr. Tadros drafted an evaluation of 

Mr. Shine’s psychiatric condition on January 21, 2003. In that evaluation, Dr. Tadros states that 

Mr. Shine’s depression has failed to improve. A list of psychotropic medication taken by the 

Respondent and the corresponding amounts is detailed in the evaluation as follows: Effexor XR 

recently regained at 150 mg qd; Lexapro 10 mg recently increased to iii qd; DepakoteER 500 mg

16 Having been duly examined and found competent, Respondent Shine received his Merchant Marine License on June 1, 2000. 

Evidence regarding his psychological well-being aboard the MAUI and PRESIDENT JACKSON surfaced after March 2001. 

Similarly, evidence diagnosing the Respondent with a major depressive disorder begins in June 2002. 

27
ii qd no level known. Dr. Tadros also explains that Mr. Shine’s depression is accompanied by 

suicidal thoughts. (Attachment 30). On that same day, the Respondent was admitted to Sharp 

Mesa Vista Hospital. At the time of admission, Dr. Tadros diagnosed the Respondent with 

bipolar manic-depressive disorder. (Attachment 31). 

In February 2003, Dr. Francine Kulick concluded that Mr. Shine suffers from moderate to 

severe emotional instability with a mild to moderate suicide risk. (Attachment 24). In her 

evaluation, Dr. Kulick notes that Mr. Shine has been on numerous medications including 

Depakote, Effexor and Lexapro. (Attachment 24). At that time, the Respondent was diagnosed 

with a major depressive disorder. (Attachment 24). 

It is noteworthy that even the Respondent has repeatedly admitted he suffers from a 

major depressive disorder requiring the use of psychotropic medication. In a Disability Status 

Inquiry form, completed by the Respondent in September 2002, Mr. Shine states that he is taking 

anti-depressants and remains unable to work due to severe depression. (Attachment 4). 

Similarly, in a letter to the MEBA Plans Manager on October 1, 2002, Respondent explains that 

he is severely depressed and totally disabled. (Attachment 20). Mr. Shine further stresses that he 

is taking psychotropic medication that cannot be terminated instantaneously. (Attachment 20). 

Had the Respondent submitted to the court-ordered examination scheduled for September 23, 

2003, Dr. Ansar Haroun would have provided the most current diagnosis. As it stands, however, 

the Respondent ultimately failed/refused to undergo the psychological examination as directed. 

As a result, an adverse inference applies that, at the very least, Dr. Haroun would have similarly 

diagnosed Mr. Shine with a major depressive disorder requiring the use of psychotropic 

medication. 

28
Instead, a psychological evaluation rendered by Dr. Rappaport on September 30, 2003 

provides the most recent diagnoses that Mr. Shine continues to suffer from a major depressive 

disorder. Respondent’s counsel argues that Dr. Rappaport’s findings and conclusions give rise to 

significant issues of material fact, which must be resolved following a hearing on the merits. I 

do not agree. 

5. The Respondent Failed to Identify Specific Facts Evidencing Triable Issues of Fact

It is ironic that Respondent Shine willfully violated multiple orders to turn over his 

medical records and submit to a psychological evaluation and then attempts to introduce an 

unauthorized medical report prepared by Dr. Rappaport to boot strap a controverted issue of fact 

to require a hearing. For reasons stated below, Dr. Rappaport’s psychological evaluation is 

rejected. Furthermore, even if the filing of Dr. Rappaport’s report was proper, viewing the 

evidence in a light most favorable to the Respondent, there is no genuine issue of material fact 

disputing that Mr. Shine’s severe depression persists today. 

a. Dr. Rappaort’s Conclusions from the Psychological Evaluation is 

Rejected 

Respondent Shine contends that the psychological evaluation provided by Dr. Richard 

Rappaport on September 30, 2003 is the most recent evidence of Respondent’s mental state and 

should, therefore, trump all outdated records and documents presented by the Coast Guard. 

Respondent’s counsel draws particular attention to Dr. Rappaport’s conclusion that Mr. Shine 

currently does not suffer any mentally incapacitating disorder. However, a closer review of the 

report, as well as the circumstances surrounding the examination, reveal that Mr. Shine’s reliance 

on Dr. Rappaport’s conclusion is misplaced. 

The fact that Respondent repeatedly refused to submit to a psychological examination by 

the psychologist selected by the undersigned judge cannot be overlooked. Most recently, the 

29
 

Respondent was specifically ordered to undergo an examination by Dr. Ansar Haroun no later 

than October 1, 2003. While the Respondent ultimately failed to submit to this examination, he 

now attempts to offer an evaluation from a psychiatrist of his choice as a substitute at the 

eleventh hour. This alternate source is not appropriate, allowable, or legally adequate.

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. Instead, 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 2003.17 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, the conclusions in Dr. Rappaport’s evaluation are viewed 

as conjecture at best and are appropriately rejected. 

 

17 Mr. Shine discusses the details surrounding his nervous breakdown and hospitalization in an interview with Dr. 

Francine Kulick, conducted on January 29, 2003. The Transcription of Tape Cassette Recordings of the interview 

were provided by the Respondent in his Motion for Reconsideration of Court’s Order and Notice of Failure to

Comply, filed on September 20, 2003. Additional evidence of Respondent Shine’s nervous breakdown and 

hospitalization is provided in Dr. Kulick’s report on the Respondent’s psychological condition, issued on February

20, 2003 and Dr. Emad Tadros’ evaluation rendered upon admitting Mr. Shine to Sharp Mesa Vista Hospital on

January 21, 2003. See Coast Guard Attachments 24 and 31.

30
Indeed, it cannot be overlooked that Dr. Rappaport’s conclusion conflicts with his 

overall diagnosis of Mr. Shine. While Dr. Rappaport concludes there is no evidence that Mr. 

Shine is incompetent or unable to perform his duties, a diagnosis of major depression is cited 

throughout Dr. Rappaport’s psychological evaluation. Dr. Rappaport states that Mr. Shine 

“experienced a major depressive disorder, which had an increasing impact on him as the process 

dragged on and on with no relief. It was maddening for him. And yet, he could not stop himself 

from questioning the system itself.” See Dr. Rappaport’s Psychological Evaluation, at 15 (Sept. 

30, 2003). Dr. Rappaport also explains that the stressors in Mr. Shine’s life, including conflicts 

with the maritime industry, his work environment, and feelings of being treated unjustly, 

eventually developed into psychological problems. See id., at 13. Dr. Rappaport diagnosed 

those psychological problems as a “major depressive disorder with fluctuation from mild to 

moderately severe. See id., at 10 and 12. Dr. Rappaport also noted evidence of a major mood 

disorder. See id., at 10. In conclusion, Dr. Rappaport explains that Mr. Shine’s inherent trait of 

challenging the existing practices continues to preoccupy him, and thus, his depression 

continues. See id., at 15. 

Regardless of Dr. Rappaport’s professional opinion regarding Mr. Shine’s psychological 

condition, the undersigned judge will make the ultimate determination as to whether the 

Respondent is able to perform his duties. An administrative law judge is not bound by the 

recommendations of the psychiatrist or even by the medical findings and opinion. See Appeal

Decision 2021 (BURKE). Although a medical doctor’s expert opinion is ordinarily given 

considerable weight in the ascertainment of a medical condition, the final determination as to 

whether a mariner is fit for sea duty should be made by the Administrative Law Judge based 

upon all the pertinent facts. See Appeal Decision 2021 (BURKE); see also Appeal Decision 825

31
(PERKINS). As such, whether the Respondent is incompetent for all, some, or only certain 

shipboard duties is a matter for the sole determination of the undersigned judge, not Dr. 

Rappaport. 

b. No Genuine Issue of Material Fact Exists Even When Considering Dr.

Rappaport’s Report

Even assuming arguendo, that Dr. Rappaport’s medical report was a permissible filing, 

there is no genuine issue of material fact that Mr. Shine suffers from a major depressive disorder, 

which persists today. As a matter of fact, Dr. Rappaport diagnosed the Respondent with “Major 

Depressive Disorder, single episode (296.2), with fluctuation from mild to moderately severe.” 

Dr. Rappaport also diagnoses Respondent Shine with “Traits of an obsessive-compulsive nature 

with some narcissistic features, not to the level of a disorder.” In rendering the diagnoses, Dr. 

Rappaport relied upon and cited to the Diagnostic and Statistical Manual of Mental Disorders, 

Fourth Edition, Text Revision (“DSM-IV-TR”) (American Psychiatric Association 2000). 

On November 18, 2003, the undersigned issued an Order proposing to take Official 

Notice of the DSM-IV-TR in its entirety. On November 24, 2003, the Respondent filed an 

objection to the November 18, 2003 Order. Based on the Respondent’s objection, the 

undersigned issued an Order of Clarification on December 10, 2003. The Order explained that 

Official Notice of the definition and symptomology of Major Depressive Episodes and 

Disorders, Obsessive-Compulsive, and Narcissistic was needed to give context to Dr. 

Rappaport’s medical report. Thereafter, Respondent withdrew his objection on December 11, 

2003, in accordance with the December 10, 2003 Order. Accordingly, Official Notice of the 

DSM-IV-TR was taken of the definition and symptomatology of Major Depressive Episodes and 

Disorders, Obsessive-Compulsive, and Narcissistic. 

32
The DSM-IV-TR states, “Major Depressive Disorder is a clinical course that is 

characterized by one or more Major Depressive Episodes (see p. 349). See DSM-IV-TR, at page 

369. The DSM-IV-TR indicates that “those with Major Depressive Disorder have . . . decreased 

physical, social, and role functioning.” Dr. Rappaport explains “a major depression is 

characterized by sadness, feelings of hopelessness and helplessness, vegetative signs such as 

difficulty with appetite or sleep and possible thoughts of suicide.” This explanation is consistent 

with features of Major Depressive Episode described in the DSM-IV-TR at page 349. 

However, the DSM-IV-TR goes on to explain, “Many individuals report or exhibit increased 

irritability (e.g., persistent anger, a tendency to respond to events with angry outbursts or 

blaming others, or an exaggerated sense of frustration over minor matters).” Id. at 349. “If the 

impairment is severe, the person may lose the ability to function socially or occupationally.” Id. 

at 351.18

It is clear from the evidence in this case, that there is no disputed issue of material fact 

that the Respondent currently suffers from a psychiatric condition that renders him mentally 

incompetent to serve under the authority of his Coast Guard issued license and document. 

Indeed, since the Respondent’s last employment aboard a vessel, he has been admitted to a 

hospital for mental health disorders, undergone continuous psychotherapy, and was diagnosed 

with a mental condition requiring the use of psychotropic medication. Most importantly, the 

 18 The DSM-IV-TR defines “Obsessions” as “persistent ideas, thought, impulses or images that are experienced as 

intrusive and inappropriate and that cause marked anxiety or distress.” See DSM-IV-TR, at page 457. 

“Compulsions” are defined as “repetitive behaviors (e.g., hand washing, ordering, checking) or mental acts (e.g., 

praying, counting, repeating words silently) the goal of which is to prevent or reduce anxiety or distress.” 

Furthermore, the essential features of Narcissistic Personality Disorder are a “pervasive pattern of grandiosity, 

need for admiration, and lack of empathy.” 

While Dr. Rappaport diagnosed Respondent with obsessive-compulsive trait and indicated that the narcissistic

features exhibited by Mr. Shine do not rise to the level of a disorder, the definition of the two is necessary to fully 

understand Mr. Shine’s symptoms. 

33
record is devoid of any evidence to indicate that the Respondent’s mental condition has chanced 

since that time. 

Thus, viewing the evidence in a light most favorable to Respondent and based on the 

various admissions contained in the documentary evidence concerning Mr. Shine’s 

psychological condition, I find that the Coast Guard is entitled to judgment as a matter of law. I 

further find that the written record in this case was completely adequate to resolve the legal issue 

concerning Respondent’s competency. Given the breadth and depth of the written record, I 

cannot say that the opinions and credibility of lay witnesses explored on direct or crossexamination would add anything material to the limited issue concerning Mr. Shine’s mental 

competency to serve aboard a vessel. As such, I turn to the other unresolved issues pending. 

B. Other Unresolved Issues Pending

There are two unresolved issues: 1) Respondent’s Motion for Reconsideration and 2) 

Respondent’s Response to the February 5, 2004 Order and Request for Scheduling Conference. 

Each issue will be discussed in turn.

1. Respondent’s Reconsideration Motion

The Respondent filed a Motion for Reconsideration on September 30, 2003, in which he 

asserts the Judge’s Order and Notice of Failure to Comply dated September 23, 2003 contains 

several inaccuracies and misstatements of fact. Respondent Shine specifically argues: (a) all 

relevant medical psychological records have been furnished to both the Agency and this Judge; 

(b) Dr. Haroun refused to conduct the examination despite Respondent’s willingness to comply; 

and (c) Dr. Haroun was not properly prepared for the examination and lacked crucial 

information. Moreover, despite the undersigned’s ruling on the matter on September 23, 2003, 

Respondent continues to maintain that the California Code of Civil Procedure 2032(g) and Rule 

34
35 of the Federal Rules of Civil Procedure support recordation of the psychological examination 

and the presence of his attorney during the psychological examination. 

While the Coast Guard acquired various medical records through its subpoena power set 

forth in 46 CFR 5.301 and 33 CFR 20.608, several documents relating to Respondent’s 

psychological well-being remain unavailable. Such documents include all medical records 

concerning Mr. Shine’s mental competence from Sharp HealthCare in San Diego, California. 

Rather than fully complying with the Coast Guard’s subpoena, Sharp HealthCare transmitted the 

records under seal to the undersigned Judge on July 28, 2003. Because Mr. Shine’s records 

contain information subject to the confidentiality requirements of the California Welfare and 

Institutions Code, the hospital was hesitant to release the records without first obtaining Mr. 

Shine’s consent. When Mr. Shine’s consent could not be obtained, Sharp HealthCare sent the 

medical records directly to the Judge for the limited purpose of an in camera review. As such, 

Mr. Shine’s refusal to make his records available for purposes of this proceeding has resulted in 

unnecessary obstacles and delay. 

Additional evidence reveals that Respondent deliberately withheld psychological records 

in his direct possession. It was only through the employment of eleventh-hour tactics in an effort 

to defeat the summary decision motion that the Coast Guard and this judge became aware of Dr. 

Richard Rappaport’s psychological evaluation of Mr. Shine. Dr. Rappaport’s report reveals 

additional medical/psychological documents provided to him by the Respondent, which were not 

similarly provided to the Coast Guard.19 Included amongst these documents are: a) records from

Dr. Kathleen Flanigan, indicating that she saw Respondent Shine on February 4 and 5, 2003; b) a 

report from the Del Mar Psychiatric Center, diagnosing the Respondent with a major depressive 

35
 

disorder and a generalized anxiety disorder; c) a report from Dr. Alec Caldwell, making 

generalized conclusions of an emotionally explosive personality; and d) a packet of records from

Dr. Emad Tadros, parts of which the Coast Guard obtained from other sources but were not 

produced by the Respondent. The Respondent’s deliberate attempt to conceal relevant 

information and withhold psychological records in his possession constitutes a refusal to comply 

with the Judge’s discovery orders. As such, the inference that all such medical and 

psychological records would be adverse to the Respondent continues to apply. 

Similarly, the Respondent’s actions exhibited on the morning he appeared for an 

interview with Dr. Haroun constitute a refusal to undergo a psychological examination as 

directed. In his Motion for Reconsideration of the Court’s Order and Notice of Failure to 

Comply, the Respondent argues he explained to Dr. Haroun that the court order did not prohibit 

video recordation of the examination. The Respondent claims that despite this assurance, Dr. 

Haroun continued to refuse to proceed with the examination. The Respondent also argues that 

such unintrusive recordation is customarily allowed under both Rule 35 of the Federal Rules of 

Civil Procedure and the California Code of Civil Procedure § 2032. The Respondent, therefore, 

asserts that he made a good faith attempt to comply with the Judge’s orders when his counsel 

undertook efforts to contact the Judge’s general office number for clarification. I do not agree. 

Employing the same eleventh-hour tactics, at no time between the issuance of the September 8, 

2003 Order and the September 18, 2003 appointment date, did Respondent’s counsel file a 

motion for leave to be present or to videotape the psychological examination. Both Respondent 

and his counsel were repeatedly advised that the consequences for failing to comply with the 

19 Dr. Rappaport’s psychological evaluation was attached to Respondent’s Opposition to Contingent Motion for 

(continued from page 13) Summary Judgment filed on October 1, 2003. 

36
undersigned’s order would be severe (i.e., an adverse inference would be drawn). Under these 

circumstances, at minimum, Respondent’s counsel should have sought clarification in advance of 

the examination as to whether he could be present during the psychological examination and 

whether videotaping was permissible. Considering Respondent’s repeated objections to the 

discovery orders and orders compelling psychological examination, this latest action is simply 

just another attempt to evade discovery. Because the Respondent failed to raise any new legal or

factual issues, his arguments concerning both the video recordation of the interview and his 

failure to submit to a psychological examination are hereby summarily rejected pursuant to 33 

CFR § 20.309(f). 

Finally, the Respondent’s argument that Dr. Haroun was not provided with sufficient 

information before the scheduled exam is without merit. Dr. Haroun is a competent professional 

who is the primary psychiatric professor at the University of California San Diego. He is also an 

employee of the County of San Diego, providing psychiatric evaluations for Superior Court 

proceedings and has held this position for numerous years. Although the undersigned ordered 

the Respondent to undergo an examination by Dr. Haroun, the ultimate determination as to how 

many interviews and/or psychological tests that were needed to make a general diagnosis of the 

Respondent’s current mental state was to be decided by Dr. Haroun. A judge’s letter of 

instruction, along with parts of both parties’ submissions, was tendered to Dr. Haroun on 

September 17, 2003. However, Dr. Haroun’s ability to assess Respondent Shine’s current 

mental capacity was not contingent on this documentation as such information was merely initial 

background material that was to be reviewed by Dr. Haroun for his first meeting. The remainder 

of both parties’ submissions was received by Dr. Haroun a short time thereafter. Since Dr. 

37
Haroun was authorized up to 20 hours of paid time on this case, the momentary delay in 

receiving all of the background material is of no consequence. 

Upon review and careful consideration to each of the Respondent’s contentions, the 

undersigned finds that the Respondent was not justified in leaving Dr. Haroun’s office on 

September 18, 2003 without having the court ordered examination. Rather, the Respondent’s 

actions constitute a failure or refusal to submit to a psychological examination as directed. As 

such, the Respondent’s Motion for Reconsideration is DENIED, and an inference that the results

of the examination would be adverse to the Respondent stands.

2. Respondent’s Response to the February 5, 2004 Order and Request for

Scheduling Conference

Following the Vice Commandant’s dismissal of an interlocutory appeal of the 

undersigned’s denial of Respondent’s Motion for Recusal on the basis of bias, the undersigned 

issued an Order on February 5, 2004 directing Respondent’s Counsel to clarify whether he is 

“still” Counsel of Record and whether he is adopting the claims, defenses, and other factual and 

legal contentions contained in Respondent’s appeals.20 On February 10, 2004, Respondent’s 

Counsel affirmed that there had “been no change in the legal representation of respondent in this 

matter” and indicated a lack of knowledge concerning the “’claims, defenses, and other factual 

and legal contentions’ contained in the appeals.” Based on Counsel’s response, I find that it is 

not relevant to the resolution of this case whether or not Mr. Forgie adopts the claims, defenses, 

and other factual and legal contentions’ contained in the appeals. If Counsel desires the appellate 

material he requests, a copy can be obtained from his client. Moreover, Respondent’s Counsel 

 20 Mr. Shine filed the appeal to the Commandant without the assistance of counsel, and it appears that Mr. Shine 

failed to forward a copy of the appellate filings to his attorney, Peter Forgie. After reviewing the appellate record, 

the Commandant held in Appeal Decision 2644 (SHINE) (2004) that Mr. Shine’s appeal was premature as a 

Decision and Order had not been rendered in the proceedings. 

38
requested a scheduling conference be set for the purpose of determining dates for a hearing on 

the Coast Guard’s Motion for Summary Decision and a hearing to consider evidence on the 

Coast Guard’s Complaint and the Respondent’s defenses. For the reasons stated above in this 

decision, those requests are DENIED. 

III. CONCLUSION

In conclusion, there is substantial evidence in the record to support a finding that the 

Respondent suffers from a mental impairment of sufficient disabling character, which renders 

him unable to safely perform his duties aboard a merchant vessel. In the absence of any showing 

that his condition has been cured, Respondent is mentally incompetent to perform duties on a 

vessel at sea. 

Pursuant to the Table of Suggested Range of an Appropriate Order codified in 46 C.F.R. 

5.569(d), the only proper order for a charge of Incompetence is revocation. Revocation is not 

excessive in this case given the potential danger to life and property if the Respondent returned 

to service at sea. In fact, it has been repeatedly held that a person suffering from a psychiatric 

disability should not be permitted to serve aboard any vessel in a capacity in which he could 

cause serious harm to himself, to others, or to the vessel itself. See Appeal Decision 2514

(NILSEN); see also Appeal Decision 2460 (REED); Appeal Decision 2417 (YOUNG). 

Accordingly, an outright revocation of the Respondent’s license and merchant mariner 

document is the only appropriate order. WHEREFORE, 

V. ORDER

IT IS HEREBY ORDERED that the Coast Guard’s Motion for Summary Decision be, 

and it hereby is, GRANTED; 

IT IS HEREBY FURTHER ORDERED that the Coast Guard License and 

DOCUMENT issued to Respondent Eric Norman Shine is REVOKED. Respondent is ordered 

39
to immediately surrender his License and DOCUMENT to his attorney so that arrangements can 

be made to immediately transmit said documents to the U.S. Coast Guard Marine Safety Office 

San Francisco Bay. It is hereby further, 

 ORDERED that the service of this SUMMARY DECISION on the Respondent’s 

counsel will serve as notice to the Respondent of his right to appeal, the procedure for which is 

set forth in 33 C.F.R. §§ 20.1001-20.1003. (Attachment B). 

SO ORDERED: 

_______________________________ 

HON. PARLEN L. MCKENNA 

Administrative Law Judge 

United States Coast Guard 

Done and Dated: July 21, 2004 

Alameda, California 

40
ATTACHMENT A 

RULINGS ON RESPONDENT’S ISSUES ON APPEAL

1) Respondent intends to appeal the denial of each of the requests and motions which he has 

filed in this matter. Those requests and motions are a matter of record, and each is 

incorporated herein by reference, along with any opposing papers and the rulings/orders 

related thereto. 

RULING: The basis for the denial of each Respondent’s requests and motions 

are set forth in each of the corresponding orders.

2) Respondent intends to appeal the granting of all requests/motions which were filed by the 

Coast Guard and opposed by Respondent in this matter. Those requests/motions, and the 

Respondent’s oppositions, are incorporated herein by reference as those set forth in full. 

RULING: The basis for the granting of each of the Coast Guard’s requests and 

motions are set forth in each of the corresponding orders. 

3) Respondent intends to appeal the denial by the court of discovery requests, including but 

not limited to those filed on June 13, 2003, July 28, 2003, and August 28, 2003. 

Respondent further intends to appeal the court’s order of October 7, 2003, which order 

precluded the filing of further discovery requests, and the filing of any further oppositions 

by Respondent to both the U.S. Coast Guard and the ALJ’s actions in this matter. 

RULING: The basis for the denial of discovery requests are set forth in the 

Order Denying in Part Respondent’s Motion for Discovery, dated June 30, 2003; 

the Order Denying Respondent’s Second Motion for Discovery, dated July 30, 

2003; Order [Concerning Respondent’s Third Motion for Discovery], dated 

September 10, 2003; and Order, dated October 7, 2003. 

4) Respondent intends to appeal the court’s rulings regarding the validity, constitutionality 

and application of 46 CFR 5.67. 

RULING: The basis for applying 46 CFR 5.67 is set forth in the Final Order 

Directing Psychological Examination dated September 8, 2003. 

5) Respondent intends to appeal the ALJ’s granting of the USCG’s motion for production of 

Respondent’s medical and psychological and disability records. The bases for this appeal 

are set forth in several of Respondent’s filings with the court. 

RULING: The basis for granting the USCG’s motion for production of 

Respondent’s medical and psychological and disability records are set forth in the 

Orders issued on July 1, 2003 and August 4, 2003. 

41
6) Respondent intends to appeal the Administrative Law Judge’s Order to Show Cause 

dated July 8, 2003, and to submit witness summaries. The bases for this appeal are set 

forth in Respondent’s filings. 

RULING: The basis for the Order to Show Cause dated July 8, 2003, is detailed 

therein. 

7) Respondent intends to appeal the Order Rejecting Respondent’s Affirmative Defenses 

that Show Lack of Jurisdiction and Authority, issued on July 9, 2003. 

RULING: The basis for the Order Rejecting Respondent’s Affirmative Defenses 

that Show Lack of Jurisdiction and Authority were detailed in Orders dated July 

9, 2003, and September 9, 2003. 

8) Respondent intends to appeal the undersigned’s refusal to sanction the USCG for its 

failure to comply with the directive to identify the specific source and the time of the 

USCG’s acquisition of Respondent’s medical, psychological, and disability records, and 

the USCG’s abuse of process and utilization of the subpoena process in violation of the 

Health Insurance Portability and Accountability Act (HIPPA) and the Privacy Act of 

1974, 5 U.S.C. § 552(a). 

RULING: The basis for the undersigned’s ruling is detailed in the September 8, 

2003, Final Order Directing Psychological Examination. 

9) Respondent intends to appeal the Order of July 7, 2003, directing Respondent to make 

medical records available, and the court’s denial of Respondent’s Motion for 

Reconsideration of Order regarding Production of Medical and Psychological Records. 

RULING: The basis for the Order is detailed in the July 7, 2003, Order. 

10) Respondent intends to appeal the Order denying his motion for an order precluding 

admission into evidence any psychological records or testimony from Respondent’s 

treating psychotherapists. The basis of the Respondent’s arguments on this point (and on 

those listed in paragraphs 1-9) are set forth in documents already on file, including but 

not limited to the motion dated August 5, 2003. 

RULING: The basis for the undersigned’s ruling is detailed in the Orders issued 

on July 1, 2003, August 4, 2003 and September 8, 2003. 

11) Respondent intends to appeal the Order of July 15, 2003 directing Respondent to produce 

records or submit affidavits. The bases for this appeal are set forth in several filings by 

Respondent. 

RULING: The basis for the Order is detailed therein. 

42
12) Respondent intends to appeal the July 30, 2003, and August 4, 2003, Orders regarding 

psychological examination. The basis of Respondent’s appeal as to the psychological 

examination is set forth in documents on file, and they are incorporated herein by 

reference. Those filings include the brief, motions, and response filed on July 21, 25 (2), 

31, August 1, 6 (2), 12, 15 (2) and 25. 

RULING: The bases for the July 30, 2003, and August 4, 2003, Orders are 

detailed therein. 

13) Respondent intends to appeal the August 12, 2003, Order denying motion for clarification 

of USCG allegations. The basis therefore is set forth in Respondent’s motion dated 

August 5, 2003, and his filings of June 13, 2003, June 25, 2003, and July 7 and 25, 2003. 

RULING: The basis for the August 12, 2003, Order is detailed therein. 

14) Respondent intends to appeal the Order of August 28, 2003, denying Respondent’s 

request to apply the United States Department of Labor, Longshore and Harborworkers 

ALJ’s bench book to the proceedings.

RULING: The basis for the August 28, 2003,Order is detailed therein. 

15) Respondent intends to appeal the September 2, 2003, Order regarding the introduction of 

documents authored by Respondent complaining about the Union. 

RULING: The basis for the Order is detailed therein and in the Order dated 

September 9, 2003. 

16) Respondent intends to appeal the Order of September 2, 2003, regarding the ALJ’s ability 

to issue a license at a lower grade as opposed to revocation. 

RULING: The basis for the Order is detailed therein. 

17) Respondent intends to appeal the Order of September 4, 2003, regarding certain attorney 

client communications. 

RULING: The basis for the Order is detailed therein. 

18) Respondent intends to appeal the “Final Order Directing Psychological Examination” and 

its rulings on medical records issued on September 8, 2003. The bases for the appeal are 

set forth in Respondent’s filings of September 19, 2003, and October 1, 2003. 

RULING: The basis for the Order is detailed therein. 

43
19) Respondent intends to appeal the Order of September 8, 2003, denying Respondent’s 

Motion for Alternative Dispute Resolution. 

RULING: The basis for the Order is detailed therein. 

20) Respondent intends to appeal the Order of September 9, 2003, rejecting certain 

affirmative defenses, and intends also to appeal any other orders striking any of the 

Respondent’s affirmative defenses. The bases for this appeal are set forth in each of the 

Respondent’s filings. 

RULING: The basis for the Order is detailed therein. 

21) Respondent intends to appeal the September 12, 2003, Order denying response motion 

for order regarding jurisdiction over Respondent. 

RULING: The basis for the Order is detailed therein. 

22) Respondent intends to appeal the September 23, 2003, Order relating to the Notice of 

Failure to Comply, and the order associated therewith. The basis for this appeal is set 

forth in, among other filings, Respondent’s filings of October 1 and October 7, 2003. 

RULING: The basis for the Order is detailed therein, and is further explained in 

the attached Order Granting Summary Decision. 

23) Respondent has filed an appeal to Commandant [GMAO-1] in regards to this judge’s 

denying Respondent’s Motion for Recusal of the Administrative Law Judge which 

requires full due process hearings in this regard. 

RULING: The basis for the denial of the Respondent’s Motion for Recusal of 

the Administrative Law Judge is detailed in the Order dated November 20, 2003. 

24) Respondent intends to appeal any order relating to his October 1, 2003, motion for 

Reconsideration of the Order and Notice of Failure to Comply. Neither Respondent, nor 

his counsel, are aware of any Order relating to that Motion for Reconsideration, and 

Respondent reserves all rights relating thereto. 

RULING: The basis for the denial of the Reconsideration Motion is detailed in 

the attached Order Granting Summary Decision. 

25) Respondent intends to appeal the undersigned’s ruling relating to his failure to require the 

USCG to state with greater specificity the particular manner and/or statute alleged to 

have been violated by Respondent in relation to these proceedings pursuant to the 

requirements of 46 CFR 5.33. 

RULING: The basis for the undersigned’s ruling is detailed in the Orders issued 

on July 9, 2003, and August 12, 2003. 

44
26) Respondent intends to appeal the August 12, 2003, Order denying Motion for 

Clarification of the United States Coast Guard allegations. The basis therefore is set 

forth in response to Respondent’s motion dated August 5, 2003. 

RULING: The basis for the Order is detailed therein. 

27) Respondent intends to appeal the issues associated with the conduct of the August 26 and 

August 27, 2003, proceedings, the absence of due process, and the lack of foundation for 

any proffered evidence. 

RULING: The proceeding was conducted in accordance with the Administrative 

Procedure Act, Coast Guard Procedural Regulations codified at 33 CFR Part 20, 

46 CFR part 5, and 46 U.S.C. Chp. 77. 

28) The Respondent intends to appeal the ruling(s) that no act of incompetence need be 

shown as a requirement to revoke his license. The bases for this appeal have been set 

forth in the documents which Respondent has filed since early May 2003. 

RULING: The basis for the ruling is detailed in the attached Order Granting 

Summary Decision. 

29) Respondent intends to appeal the ALJ’s rulings insofar as they fail to consider the 

implications of the Labor Management Reporting, and Disclosure Act (29 USC 401) to 

the activities of the Respondent herein, as regards the grievance and reporting procedures 

in which he has engaged, and which are now being utilized against him in the 

proceedings.

RULING: The Labor Management Reporting and Disclosure Act is inapplicable. 

Rather, suspension and revocation proceedings for Incompetence are governed by 

the Administrative Procedure Act, Coast Guard Regulations codified at 33 C.F.R. 

Part 20, 46 C.F.R. Part 5 and 46 U.S.C. Chp. 77. 

30) Respondent intends to appeal the retaliatory nature of these proceedings, the issues of 

malicious and retaliatory prosecution in the face of whistleblowing evidence which must 

include the letter to the Secretary of Transportation and USCG of March 2003 for which 

these proceedings were instituted, letters to the FBI, formal union grievances, formal U.S. 

District Court Civil complaints and other whistleblowing complaints and reports which 

have been made by Respondent and been used against him as evidence. 

RULING: The proceedings were conducted in accordance with the 

Administrative Procedure Act, Coast Guard Regulations codified at 33 C.F.R. 

Part 20 and 46 C.F.R. Part 5, and 46 U.S.C. Chp. 77. Further, this issue has been 

addressed and ruled upon in the September 9, 2003, Order. 

31) Respondent intends to appeal the present proceedings as inapposite to the intent of Labor 

Management Reporting and Disclosure Act, the Sarbanes-Oxley Act, the Whistle Blower 

Protection Act, the Administrative Procedure Act [as amended by the WPA and other 

laws], in contrast to the language and intent of 46 USCA 2114, Railway Labor Act, the 

45
Merchant Marine Act of 1936, general maritime law and admiralty, which requires 

timely due process hearings, and any hearings within an administrative authority or 

proceeding, not to extend beyond a four month time period. 

RULING: Coast Guard suspension and revocation proceedings for Incompetence 

are governed by the Administrative Procedure Act, Coast Guard Regulations 

codified at 33 C.F.R. Part 20 and 46 C.F.R. Part 5, and 46 U.S.C. Chp. 77. All 

other Acts, including but not limited to the Whistle Blower Protection Act, the 

Railway Labor Act and the Labor Management Reporting and Disclosure Act, are 

inapplicable. Furthermore, neither the APA nor the applicable Coast Guard 

Procedural Regulations establish time restrictions for completing the decisional 

process, including hearings. 

32) Respondent intends to appeal the entire process and procedures and manner by which 

these proceedings have been carried out, as the process is to be remedial in nature and not 

punitive, and rather than pursuant to a proper and full investigation and proper due 

process hearings. The OALJ and USCG wish to create their own pre-ordained result 

through the denial of proper process and fact-finding procedures. 

RULING: The proceeding was conducted in accordance with the Administrative 

Procedure Act, Coast Guard Procedural Regulations codified at 33 CFR Part 20, 

46 C.F.R. Part 5 and 46 U.S.C. Chp. 77. 

33) Respondent intends to appeal the fact that the USCG and OALJ have in fact imposed 

themselves into a labor dispute to favor one side or one party in the disputes, rather then 

force all parties to use the proper process as created under the Railway Labor Act and 

further protected by the Merchant Marine Act of 1936. 

RULING: The Railway Labor Act is inapplicable. Further, this issue has been 

ruled upon in the September 9, 2003, Order. 

34) Respondent intends to appeal that the USCG and OALJ/ALJ have far exceeded their 

authority and now attempt to escape derelictions of duty on the part of certain officials or 

individuals by whitewashing the Respondent’s valid complaints and grievances through 

use of a “labor dispute medical examination,” rather than by investigating and 

discovering the problems with the License Personnel Board and requiring that the various 

parties abide by the proper process and use its own influence and authority to ensure that 

the process is fair and impartial. 

RULING: This issue has been ruled upon in the September 9, 2003, Order. 

46

35) Respondent intends to appeal the length of time that the proceedings have carried on 

without proper “Hearing” and that the NTSB, due to the conflicted and whistle blower 

nature of these proceedings, should have bee incorporated into the processes from the

very beginning. That the matters within an ALJ’s authority should not extend beyond 

four (4) months as per the LMRDS, and likewise for the Appeal to the Commandant, the 

NTSB and eventually to de novo judicial review, this entire process should not exceed a 

period of one year, or less. 
47

RULING: Neither the Administrative Procedure Act, the Coast Guard Procedural Regulations 

codified at 33 CFR Part 20, the NTSB statute codified at 49 U.S.C. 1133, nor the NTSB 

Procedural Regulations for Merchant Marine codified at 49 CFR Part 825, 

establish time restrictions for completing the decisional processes, including 

hearing. Moreover, the Coast Guard regulations authorize the summary 

disposition of cases where there exists no genuine issue of material fact. 

36) Respondent intends to appeal the proper use of the National Maritime Center/Chief 

Medical Officer, and the use of the Commandant for any matters such as this which 

involve more “complex” matters which are beyond the scope of the local I/O’s or even 

ALJ’s authority or expertise. 

RULING: No appealable issue can be discerned in the above statement proffered 

by the Respondent.