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

219 F.2d 413 LY SHEW, as guardian ad litem of Ly Moon and Ly Sue Ning, Appellant, v. John Foster DULLES, as Secretary of State of the United States, Appellee. No. 13808. United States Court of Appeals, Ninth Circuit. December 30, 1954. Rehearing and Rehearing in Banc Denied February 4, 1955, and March 3, 1955. Stanley J. Gales, Sacramento, Cal., for appellant. Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., Morton M. Levine, Immigration & Naturalization Service, San Francisco, Cal., for appellee. Before DENMAN, Chief Judge, and MATHEWS and BONE, Circuit Judges. MATHEWS, Circuit Judge. 1 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 action 1 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. 2 On or before January 11, 1952, the District Court appointed Ly Shew as guardian ad litem of a…

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 action 1 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 action 2 in *415 the District Court against Secretary Acheson 3 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 opinion 5 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,…

(dissenting).

I. The Denial of Due Process and Need for Rehearing En Banc.

The proceeding before us is the consideration of a petition for rehearing. Instead, the majority opinion and decision treat it as a petition for reversal of our then existing decision without hearing and without r&ply. The majority’s decision is in gross violation of the principles of due process to which Ly Shew is entitled. It should be reviewed en banc.

We decided this case with a reversal ordering judgment to be rendered for Ly Shew, requiring the admission of his son and daughter to join their par *417 ents and their sister in the United States. Dulles filed a petition for rehearing. Our Rule 23 does not require such a petition to be served on the successful litigant nor for a brief or other opposition to it. All Ly Shew is required to do is to wait to see whether the petition is granted. If granted, Ly Shew for the first time is required to meet the contentions and authorities upon which the rehearing is granted.

The petition consists of several contentions neyer considered in the opinion in favor of Ly Shew. It relies upon over eighteen federal decisions, never cited in Dulles’ brief on…