Eric Norman Shine v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC NORMAN SHINE,
Petitioner,
v.
UNITED STATES OF AMERICA, et al.,
Respondents.
No. 11-72740
N.T.S.B. No. EM-209
MEMORANDUM*
On Petition for Review of an Order of the
National Transportation Safety Board
Argued and Submitted January 14, 2014
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.**
Eric Norman Shine petitions for review of the Coast Guard’s order revoking
his merchant mariner license for mental incompetence. The Coast Guard relied on
acts that Mr. Shine had committed aboard merchant vessels, his refusal to submit
FILED
APR 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
** The Honorable Raymond J. Dearie, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

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to a psychological examination, and records indicating that he suffered from
psychological disorders. After lengthy proceedings involving multiple appeals, the
National Transportation Safety Board (“NTSB”) affirmed. On appeal, Mr. Shine
argues that the Coast Guard exceeded its jurisdiction in revoking his license, that it
inappropriately obtained and considered treatment records in violation of the
psychotherapist-patient privilege, and that the proceedings violated his due process
rights. We deny the petition for review.
1. The Coast Guard is authorized to suspend or revoke merchant mariner
licenses on the grounds that Congress has enumerated in the Maritime License
Suspension and Revocation Act, 46 U.S.C. § 7703. In relevant part, § 7703
authorizes the Coast Guard to suspend or revoke a merchant mariner license if the
license holder “has committed an act of incompetence relating to the operation of a
vessel.” Id. § 7703(4). Coast Guard regulations define incompetence 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 thereof.” 46 C.F.R. § 5.31.
2. After a four-day hearing, the administrative law judge (“ALJ”) made
factual findings that Mr. Shine had committed multiple acts of incompetence while
aboard two merchant mariner vessels: the Steamship (“SS”) Maui and the Motor
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Vessel (“M/V”) President Jackson. We review these factual findings for
substantial evidence. Borregard v. NTSB, 46 F.3d 944, 945 (9th Cir. 1995). This
is a highly deferential standard, which requires us to uphold the findings unless,
“considering the record as a whole, a reasonable mind would necessarily come to a
different conclusion.” Wardell v. NTSB, 884 F.2d 510, 513 (9th Cir. 1989). Here,
the record does not compel such a result. In fact, the record establishes that Mr.
Shine committed numerous inappropriate acts aboard the SS Maui1 and M/V
President Jackson. These acts included leaving areas of the ship unprotected by
fire alarms, turning on a switch without knowing its function, disrupting fire drills,
failing to report and improperly reporting for duty, and acting in an aggressive
manner toward his crewmembers and superiors. On the basis of these findings, we
conclude that the Coast Guard’s order revoking Mr. Shine’s license is not
“‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.’” Borregard, 46 F.3d at 945 (quoting 5 U.S.C. § 706(2)(A)).
3. In holding that Mr. Shine’s license should be revoked, the Coast
Guard relied both on these acts and on evidence that he was suffering from
psychological disorders to conclude that he was mentally incompetent. This
1 Mr. Shine was initially discharged from the SS Maui for refusing an
order to resume watch over the ship’s boiler room. However, the firm that owned
the ship later rescinded his discharge.
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evidence partially consisted of Mr. Shine’s psychological records, which the Coast
Guard used its subpoena power to obtain. See 33 C.F.R. § 20.608(d). Mr. Shine
argues that these documents are privileged under Jaffee v. Redmond, 518 U.S. 1
(1996), which established a psychotherapist-patient privilege under Federal Rule of
Evidence 501. The Coast Guard contends that the documents were not privileged
because its regulations provide that the physician-patient privilege does not apply
to suspension and revocation proceedings. See 46 C.F.R. § 5.67. It is not at all
certain, as Mr. Shine urges, that the psychotherapist-patient privilege would, in this
administrative setting, bar or impede the Coast Guard’s collection of important
information in the discharge of its credentialing responsibility.2 However, we
decline to address this issue, because the findings of the ALJ are readily supported
without reference to the subpoenaed documents. We also decline to discuss Mr.
2 Although we do not address the issue, if a psychotherapist-patient
privilege applies to suspension and revocation proceedings, a modified version
may be appropriate given that the purpose of these proceedings is to “help maintain
standards for competence and conduct essential to the promotion of safety at sea.”
46 C.F.R. § 5.5. To the extent the Military Rules of Evidence provide a helpful
analogy, we note that Mr. Shine’s records would fall under an exception
comparable to one for evidence “necessary to ensure the safety and security of
military personnel, military dependents, military property, classified information,
or the accomplishment of a military mission.” Mil. R. Evid. 513(d)(6).
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Shine’s due process claims, because they are without any evidentiary support in the
record.
As a result of the foregoing, we affirm the Coast Guard’s order as upheld by
the NTSB.
PETITION FOR REVIEW DENIED.
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