Ly Shew, as Guardian Ad Litem of Ly Moon and Ly Sue Ning v. John Foster Dulles, as Secretary of State of the United States ( 1955 )

MATHEWS, Circuit Judge.

On or before November 8, 1950, the United States District Court for the Northern District of California appointed Ly Shew as guardian ad litem of a boy who called himself and claimed to be Ly Moon and is hereafter called Moon. On November 8, 1950, Moon, by his guardian ad litem, Ly Shew, instituted an action¹ in the District Court against Dean Acheson, as Secretary of State of the United States, for a judgment declaring Moon to be a citizen and national of the United States.

On or before January 11, 1952, the District Court appointed Ly Shew as guardian ad litem of a girl who called herself and claimed to be Ly Sue Ning and is hereafter called Ning. On January 11, 1952, Ning, by her guardian ad litem, Ly Shew, instituted an action² in the District Court against Secretary Acheson³ for a judgment declaring her to be a citizen and national of the United States.

The Secretary answered the complaints,⁴ 5the actions were consolidated, a trial was had, an opinion⁵ was filed, findings of fact and conclusions of law were stated, and on February 18, 1953, a judgment was entered denying the relief sought by Moon and Ning. From that judgment this appeal was taken on March 18, 1953.

The appeal was heard on July 16,1954. On August 18, 1954, this court (Judge Bone dissenting) entered a judgment reversing the judgment appealed from and directing the entry of a judgment for Moon and Ning. On September 17, 1954, the Secretary filed a petition for rehearing. Upon consideration thereof, this Court (Judge Denman dissenting) has today vacated its judgment of August 18, 1954, and denied the petition for rehearing.

Jurisdiction of these actions was conferred on the District Court by 8 U.S.C. A. § 903,⁶ which provided: “If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. * * *”

Moon and Ning were born in China and, up to the time the actions were instituted, had not entered the United States. The Secretary therefore contends that the District Court had no jurisdiction under § 903. There is no merit in this contention. See Fong Wone Jing v. Dulles, 9 Cir., 217 F.2d 138; Chow Sing v. Brownell, 9 Cir., 217 F.2d 140; Brownell v. Lee Mon Hong, 9 Cir., 217 F.2d 143; Lee Wing Hong v. Dulles, 7 Cir., 214 F.2d 753.

Moon’s complaint alleged, in substance, that he was born in China on October 18, 1933; that Ly Shew was his father; that Ly Shew was a citizen of the United States at the time of Moon’s birth and had resided in the United States since July 15, 1912; and that Moon was therefore a citizen of the United States under § 1993 of the Revised Statutes.⁷ Ning’s complaint alleged, in substance, that she was born in China on January 26, 1937; that Ly Shew was her father; that Ly Shew was a citizen of the United States at the time of her birth and had resided in the United States since July 15, 1912; and that she was therefore a citizen of the United States under § 1993 of the Revised Statutes.⁸ Thus, in effect, the complaints alleged that Moon and Ning were nationals as well as citizens of the United States; for, although all nationals of the United States are not citizens thereof, all citizens thereof are nationals thereof.⁹

The answers denied that ■ Ly Shew was the father of Moon and'Ning, thus, in effect, denying that Moon and Ning were citizens or nationals of the United States. On the issues thus raised, Moon and Ning had the burden of proof,¹⁰ which is to say, the burden of proving that Ly Shew was their father.

Moon and Ning appeared' at the trial and, by their guardian ad litem, Ly Shew, introduced evidence¹¹ some of which tended to show that Ly Shew was the father of persons known as Ly Moon and Ly Sue Ning and that Moon and Ning were those persons. Some of the evidence so tending was uncontradicted. However, the District Court was not required to believe such evidence or to accept it as true.¹²

The District Court found: “That the persons [Moon and Ning] who call themselves Ly Moon and Ly Sue Ning and who claim to be the plaintiffs herein and who claim to be the children of Ly Shew have failed to introduce evidence of sufficient clarity to satisfy or convince this Court that Ly Shew is the natural blood father of the persons known as Ly Moon and Ly Sue Ning * * * or that the persons [Moon and Ning] who appeared before this Court claiming to be Ly Moon and Ly Sue Ning are in truth and fact Ly Moon and Ly Sue Ning.” Thus, in effect, the District Court found that Moon and Ning had not sustained their burden of proof.

However, it. appears from the District Court’s opinion,¹³ that .the District Court proceeded on the theory that the burden of proof resting on Moon and Ning was different from and heavier than the ordinary burden of proof resting on plaintiffs in civil actions — a theory which was and is untenable.¹⁴ We hold that Moon and Ning’s burden of proof was the ordinary one. As to whether they sustained that burden, we express no opinion.

The judgment is vacated and the causes are remanded with directions to make findings as to whether Ly Shew was the father of Moon and Ning, such findings to be made in the light of this opinion,¹⁵ and thereupon enter such judgment as may be proper.

1 . According to his complaint, Moon was born on October 18, 1933, and hence was an infant when his action was instituted and at all pertinent times thereafter.

2 . According to her complaint, Ning was born on January 26, 1937, and hence was an infant when her action was instituted and at all pertinent times thereafter.

3 . In both actions, Acheson’s successor, John Foster Dulles, was substituted for Acheson on April 7, 1953.

4 . The complaints were called petitions.

5 . Ly Shew v. Acheson, D.C.N.D.Cal., 110 F.Supp. 50.

6 . Section 903 was repealed by § 403(a) of the Immigration and Nationality Act, 66 Stat. 279, 280, effective December 24, 1952. However, these actions, having been instituted before December 24, 1952, were not affected by the repeal. See § 405(a) of the Immigration and Nationality Act, 66 Stat. 280, 8 U.S.C.A. § 1101 note. The subject matter of § 903 is now covered by 8 U.S.C.A. § 1503.

7 . See 8 U.S.C.A. §§ 6 and 601 (g and h), now §§ 1431-1433, 1401.

8 . See 8 U.S.C.A. §§ 6 and 601 (g and h), now §§ 1431-1433, 1401.

9 . See 8 U.S.O.A. §§ 501(b) and 1101(a) (22); Chow Sing v. Brownell, supra; Brownell v. Lee Mon Hong, supra; Law Don Shew v. Dulles, 9 Cir., 217 F.2d 146.

10 . Fong Wone Jing v. Dulles, supra; Chow Sing v. Brownell, supra; Brownell v. Lee Mon Hong, supra; Law Don Shew v. Dulles, supra; Bauer v. Clark, 7 Cir., 161 F.2d 397; Elias v. Dulles, 1 Cir., 211 F.2d 520.

11 . The evidence introduced by Moon and Ning consisted of the testimony of eight witnesses (Moon, Ning, Ly Shew and five others) and ten exhibits (Nos. 1-3 and 7-13).

12 . Mar Gong v. Brownell, 9 Cir., 209 F.2d 448; Chow Sing v. Brownell, supra; Law Don Shew v. Dulles, supra. See also Lee Sing Far v. United States, 9 Cir., 94 F. 834; Woey Ho v. United. States, 9 Cir., 109 F. 888; Quong Sue v. United States, 9 Cir., 116 F. 316; Easton v. Brant, 9 Cir., 19 F.2d 857; Heath v. Helmick, 9 Cir., 173 F.2d 157; National Labor Relations Board v. Howell Chevrolet Co., 9 Cir., 204 F.2d 79, affirmed in Howell Chevrolet Co. v. National Labor Relations Board, 346 U.S. 482, 74 S.Ct. 214; Wig-more on Evidence, Third Edition, § 2034; 32 C.J.S., Evidence, § 1038, pages 1093-1099.

13 . Ly Shew v. Acheson, supra.

14 . Mar Gong v. Brownell, supra; Chow Sing v. Brownell, supra; Lee Wing Hong v. Dulles, supra. These decisions, it should be noted, were subsequent to the judgment here appealed from.

15 . Cf. Mar Gong v. Brownell, supra; Chow Sing v. Brownell, supra.