John Foster Dulles, as Secretary of State v. Quan Yoke Fong , 237 F.2d 496 ( 1956 )

DENMAN, Chief Judge.

This is an appeal by Dulles from a judgment of the district court, declaring appellee to be a citizen of the United States. The suit was filed under Section 503 of the Nationality Act of 1940¹ on December 23, 1952, by appellee, a Chinese who was born in China on February 13, 1930.

Dulles’ appeal makes two primary contentions. One is that the district court lacked jurisdiction to act under Section 503 because the failure to act on the application of May 13, 1952 in the period to December 23, 1952, is not a denial of a right of a claimed national of the United States. The other contention concerns the orders of the court denying Dulles’ motion for a new trial to introduce evidence of blood tests of appellee and his alleged parents, and Dulles’ denied motion for a new trial on the contention that he had new evidence of the blood tests. Dulles’ brief makes no contention that, if the jurisdiction exists and the court did not err with regard to the motions, the judgment should be reversed.

I. Jurisdiction under Section 503 Existed for Appellee’s Complaint.

May 13, 1952: Appellee filed an application with the United States Consulate in Hong Kong for a passport to come to the United States under Section 503. Nothing was done in this over-seven-months period, but the application was denied on January 6, 1953, only thirteen days after the repeal of Section 503.

The trial court found that prior to December 24, 1952, Dulles refused to grant appellee a travel document to enable him to come to the United States to testify in the present suit.

Dulles attempts to account for this long delay from May 13, 1952, to January 6, 1953, in disposing of the application, by the fact that about three years before, i.e., between January 1, 1948 and August 15, 1949, some 2,000 citizenship claims were accumulated in Canton, China. No contention is made that in this period the State Department sought from Congress funds for additional personnel or quarters in Canton to process this increase in claims. Nor after August 15, 1949, when these claims were added to those in Hong Kong is any attempt shown to secure from Congress funds for such purposes.

Yet with but a very slight addition to the Hong Kong Consul General’s staff, appellee’s application could have been disposed of a fortnight earlier. Since in Chin Chuck Ming v. Dulles, Cir. 9, 225 F.2d 849, at page 852 we hold that the words “ ‘right or privilege as a national of the United States’ * * * cover the right to a prompt disposition of a claimed citizens’ application”, we now hold that here the delay above described constitutes a denial of such a right. Hence jurisdiction existed under Section 503 of the Nationality Act of 1940 before December 24, 1952. Chin Chuck Ming, supra, at page 853.

II'. The Court did not err in Denying Dulles’ Motion to Continue the Trial to have a Test made of the Blood of Fong for Comparison with that of his Parents who were not Parties to the Action.

Dulles moved the court for blood samples of- Fong and his parents, on the contention that “the .blood group of plaintiff is incompatible with that of his alleged parents”. (Tr. 11.) Such blood tests were ordered, that of Fong to be taken by a Dr. Ride of Hong Kong. This order was disobeyed and the blood taken by another doctor in Hong Kong, a Dr. Vio. Fong’s blood was taken but was hemolyzed when it arrived in Los Angeles for analysis — that is, there were no red corpuscles remaining intact and hence it could not be tested.

Tests were also made of the parents, the father’s affidavit stating that they were made pursuant to the court’s order to them. ' These tests were not ■ introduced in evidence but when it was discovered that Fong’s blood was hemolyzed, Dulles moved for a supplemental order to take Fong’s blood tests in Hong Kong. This the court denied,' stating as its reasons the fact that the order to have the blood taken by Dr. Ride was disobeyed and also the long period between the filing of the petition on December 23, 1952, and Dulles’ motion for the court’s order for the blood test on May 6, 1955, that is, over two years and four months.

■ The court then proceeded to consider the evidence before it and gave its decision that Fong was the son of his claimed parents and hence a national and citizen of the United States.

Thereafter, Dulles moved for a new trial, claiming that he had newly-discovered evidence. This was that one Dr. Blifeld who had taken the blood tests of the parents on June 9, 1955, under the compulsion of the court’s order to them, would téstify that he had examined a second sample of Fong’s blood again taken by Dr. Vio in Hong Kong and not the' Dr. Ride specified by the- court’s - order. On this sample he would testify that Fong’s blood group is entirely different from that of the blood,groups of his parents, which had been taken during the trial. His motion for a new trial was denied.

- Dulles contends that, though the government twice disobeyed the order specifying the physician who was to invade Fong’s body for his blood and made his motions on blood taken’ by another physician, nevertheless the court erred in denying them. Fong contends that the long delay of Dulles in seeking the blood tests and that the blood Dulles offered was not taken from Fong by the physician specified by the court, and that the court was without'jurisdiction to-order the blood tests of the parents, warranted the denial of the motions.

We think the court was without jurisdiction to order that the blood for the tests be taken from the parents’ bodies, and that the judgment must be sustained.

; Rule 35(a)² reads as follows: •

“Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” (Emphasis supplied.)

It confines the right to take blood from human beings to those whom the court “shall specify”. Fong Sik Leung v. Dulles, 226 F.2d 74 at page 79. It limits the persons who can be compelled to submit to the taking of blood from their bodies to parties to the action in which their physical condition is in controversy. Fong Sik Leung v. Dulles at pages 76 and 81. The court has no jurisdiction to compel a person not a party to the action to yield his body to the invasion of a physician’s instruments. It was a legal wrong to Fong for the court to go outside its jurisdiction and compel his parents to give evidence against him.

In view of the fact that the father’s affidavit states that his and his wife’s blood was given under the compulsion of the court’s order so made without its jurisdiction, it would be futile to grant any motion to take the blood of Fong for comparison with theirs. Yee Szet Foo v. Dulles, D.C.S.D.N.Y., 18 F.R.D. 237, 239; Chin Nee Deu v. Dulles, D.C.S.D.N.Y., 18 F.R.D. 350, 351.

Since the court had jurisdiction of this Section 503 proceeding and its denials of Dulles’ motions are not error and Dulles makes no contention that the evidence before the court does not support the court’s determination that Fong is a national and citizen of the United States, the judgment is affirmed.

1 . Now 8 U.S.C.A. § 1503.

2 . Fed.Rules Civ.Proc. rule 3o(a), 28 U.S.C.A.