F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 16 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PAGE PENK ex rel. Children,
Petitioner-Appellant,
v. No. 97-1422
(D.C. No. 97-B-1652)
WILLIAM COHEN, Secretary of (D. Colo.)
Defense,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO, BARRETT, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Page Penk, appearing pro se, appeals from the district court’s
denial of his petition for writ of mandamus. Petitioner seeks an order compelling
the Secretary of Defense to comply with Executive Order 13045, entitled
“Protection of Children from Environmental Health Risks and Safety Risks.” See
R. doc. 1, at 35; id. doc. 3. By his request, petitioner seeks to end the use of land
mines in foreign countries. The district court dismissed the petition for lack of
standing.
We review questions of standing de novo. See Utah v. Babbitt,
No. 97-4015, 1998 WL 88155, at *7 (10th Cir. Mar. 3, 1998). As noted by the
district court, “petitioner has not alleged that he is a parent, representative, or
guardian of any individuals intended to be protected by E.O. 13045 or that would
be affected by the use of land mines in [any] foreign country.” R. doc. 12, at 1-2.
The district court correctly concluded that petitioner’s status as a citizen and a
taxpayer is insufficient by itself to confer standing in this case. See Flast v.
Cohen, 392 U.S. 83, 102 (1968) (holding that “a taxpayer will be a proper party to
allege the unconstitutionality only of exercises of congressional power under the
taxing and spending clause of Art. I, § 8, of the [United States] Constitution”).
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Petitioner’s requests for an emergency en banc hearing and for oral
argument are denied. The judgment of the United States District Court for the
District of Colorado is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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