IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20740
Summary Calendar
DEAN PURCELL,
Plaintiff-Appellant,
versus
KENNETH FEINBERG, Special Master; THE OFFICE OF THE SPECIAL
MASTER; JOHN ASHCROFT, U.S. ATTORNEY GENERAL; U.S. DEPARTMENT
OF JUSTICE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-262
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January 24, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Dean Purcell filed a claim challenging the constitutionality
of the September 11 Victim Compensation Fund of 2001 (“the Fund”)
created by the Air Transportation Safety and System Stabilization
Act, Pub. L. No. 107-42, §§ 401-409, 115 Stat. 230, 237-41
(2001). The district court concluded that Purcell lacked
standing to bring his claim; thus, the court lacked jurisdiction.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-20740
-2-
Purcell appeals the district court’s judgment of dismissal under
FED. R. CIV. P. 12(b)(1).
This court reviews issues of standing de novo. See Maiz v.
Verani, 311 F.3d 334, 338 (5th Cir. 2002). To establish taxpayer
standing a plaintiff must: 1) “allege the unconstitutionality
only of exercises of congressional power under the taxing and
spending clause of Art. I, § 8, of the Constitution;” and 2)
“show the challenged enactment exceeds specific constitutional
limitations imposed upon the exercise of the congressional taxing
and spending power and not simply that the enactment is generally
beyond the powers delegated to Congress by Art. I, § 8.” See
Flast v. Cohen, 392 U.S. 83, 102-03 (1968). In cases not
alleging an Establishment Clause violation, taxpayer standing
requires that the plaintiff allege “direct injury.” Henderson v.
Stalder, 287 F.3d 374, 381 n.7 (5th Cir. 2002).
Purcell argues that Congress in providing for local charity
has violated the Ninth and Tenth Amendments by “trespassing on
areas of authority reserved to the people or the state,” and has
violated the Fifth Amendment by depriving him of property without
due process of the law and by taking his private property for
public use. Purcell’s arguments are analogous to those made by
the plaintiff in Frothingham v. Mellon, 262 U.S. 447 (1923). See
Flast, 392 U.S. at 91-92, 105-06. They do not suffice to confer
standing, as no “direct injury” is alleged. Id. at 92.
No. 02-20740
-3-
Purcell also argues that the Fund violates the Equal
Protection Clause by compensating some victims of crime but not
others. Purcell bears the burden of establishing standing. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Purcell has not established that he has suffered an injury in
fact or that it is likely, as opposed to merely speculative, that
the injury will likely be redressed by a favorable decision.
Thus, the district court did not err when it dismissed Purcell’s
claim for his lack of standing. The judgment of the district
court is AFFIRMED.