* 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that this opinion should not be published and is not precedent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.

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

--------------------

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. 
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.