UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAGE PENK,

Plaintiff - Appellant,

v.

THE HONORABLE DONALD RUMSFELD, SECRETARY OF DEFENSE,

Defendant - Appellee.	No. 02-1005

(D.C. No. 01-WM-2014)

(D. Colorado)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, EBEL and LUCERO, Circuit Judges.

On October 10, 2001, Appellant filed an "Emergency Complaint and Motion for Mandamus" before the district court, which the district court sua sponte dismissed for lack of subject matter jurisdiction. We affirm the district court's denial of Appellant's motion.

In his complaint below, Appellant asserted that Secretary Rumsfeld failed to file a report regarding "work" concerning the use of non-lethal weapons during his term of office, and that such a report was required by statute, cited by him as 61 Stat. 343, § 202 (b),1 and a 1997 Executive Order issued by former President Clinton. Plaintiff claims that the statute requires the Secretary of Defense to submit "annual written reports to the president and Congress" on "expenditures, work and accomplishments of the National Military Establishment." ROA 4 (Dist. Ct. Ord. at 1.) The Executive Order Appellant cites, No. 13,045, requires federal agencies to "make it a high priority to identify and assess environmental health risks and safety risks that may disproportionately affect children[.]" 62 Fed. Reg. 19,885 (April 21, 1997.)

As noted by the district court, a writ of mandamus is an extraordinary remedy that may only be granted if a petitioner shows that his right to the writ is "clear and indisputable." Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir. 1994). Even if a petitioner meets the strict requirements for mandamus, the issuance of a writ is nevertheless a matter of discretion. See Kerr v. United States Dist. Court, 426 U.S. 394, 403 (1976). Here, as the district court noted, neither the statute alleged by petitioner nor the Executive Order2 create a cause of action in favor of Appellant. Therefore, we affirm the denial of Appellant's motion for substantially the same reasons as stated by the district court. To the extent that Appellant requests a hearing en banc for his motion for mandamus, that request is also denied, as no member of the panel has requested a poll.3 See Fed. R. App. Pro. 35 (f).

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge