Slip Op. 06 - 173 

 UNITED STATES COURT OF INTERNATIONAL TRADE 

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FORMER EMPLOYEES OF FAIRCHILD SEMI- : 

CONDUCTOR CORP., 

 : 

Plaintiffs, 

 : 

v. Court No. 06-00215 

 : 

UNITED STATES SECRETARY OF LABOR, 

 : 

 Defendant. 

 : 

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 Memorandum & Order

[Motion for leave to proceed 

in forma pauperis denied.] 

 Dated: November 21, 2006 

Robert R. Petruska, pro se. 

Peter D. Keisler, Assistant Attorney General; David M. Cohen, 

Director, Patricia M. McCarthy, Assistant Director, Commercial 

Litigation Branch, Civil Division, U.S. Department of Justice 

(Jeffrey S. Pease); and Office of the Solicitor, U.S. Department of 

Labor (Vincent Costantino), of counsel, for the defendant. 

 AQUILINO, Senior Judge: In this action, deemed commenced 

pursuant to 28 U.S.C. §§ 1581(d)(1), 2631(d)(1) for judicial review 

of the Negative Determinations Regarding Eligibility To Apply for 

Worker Adjustment Assistance And Alternative Trade Adjustment 

Assistance of the Employment and Training Administration (“ETA”), 
Court No. 06-00215 Page 2 

U.S. Department of Labor, TA-W-58,624 (Feb. 28, 2006), comes forth 

one Robert R. Petruska, pro se, designating himself “the key 

contact person for the Fairchild appealing group” of workers 

comprising the putative plaintiff class and filing a form Motion 

For Leave to Proceed in Forma Pauperis. 

 That form specifies that the motion is made pursuant to 

28 U.S.C. §1915(a) for an order permitting prosecution of this 

action without prepayment of fees and costs or the giving of 

security therefor and also pursuant to 28 U.S.C. §1915(e) “for an 

order appointing counsel to serve without fee and to represent him 

in this action.” The form is accompanied by a form affidavit in 

support of the motion that sets forth interrogatories to be 

answered by the affiant as to (1) present employment; (2) any 

income within the past twelve months from a business, profession or 

other form of self-employment, or in the form of rent payments, 

interest, dividends, or other source; (3) cash or checking or 

savings accounts; (4) ownership of real estate, stocks, bonds, 

notes, automobiles, or other valuable property; and (5) dependents. 

In this instance, affiant plaintiff Petruska has answered (1) and 

(5) in the negative and the other three questions in the 

affirmative, providing dollar amounts for unemployment compensation, interest, dividends, bank checking, money-market and savings 

accounts, stocks, and valuable personal property.
Court No. 06-00215 Page 3 

 Unfortunately, those figures do not add up to the relief 

requested. That is, this court has sought the guidance of other 

cases involving a similar request. In Former Employees of Gateway 

Country Stores LLC v. Chao, CIT No. 04-00588, Former Employees of 

Sonoco Prods. Co. v. U.S. Sec’y of Labor, CIT No. 02-00579, and 

Former Employees of Tyco Elecs., Fiber Optics Div. v. U.S. Dep’t of 

Labor, CIT No. 02-00152, for example, leave to proceed in forma 

pauperis was granted -- based upon reported, minimal assets nowhere 

near those of plaintiff Petruska. In Mertz v. U.S. Customs Service, 

14 CIT 679, 680, 746 F.Supp. 1107, 1108 (1990), on the other hand, 

assets totaling approximately $73,000.00 (with $58,000 of that 

value consisting of real property and an automobile), combined with 

an annual salary of approximately $30,000, were held to “negate[] 

the degree of poverty or indigence necessary to proceed in forma 

pauperis.” Suffice it to state herein that the form affidavit in 

support of the motion at bar for leave to so proceed reports assets 

well in excess of the total value in Mertz, with a much greater 

percentage apparent liquid assets, albeit without any indicated 

salary at the time of its execution. 

 Of course, the Mertz and other courts have pointed out 

that the underlying statute does not require a movant to prove 

destitution before the requested leave can be granted. E.g., 

Potnick v. Eastern State Hospital, 701 F.2d 243 (2d Cir. 1983).
Court No. 06-00215 Page 4 

Nor does a movant have to be a “prisoner”, as defined in 28 U.S.C. 

§1915(h), although that status is and has been the primary focus of 

the statute. Moreover, contrary to the implication of the form 

motion, subsection 1915(e) only provides that a court “may request 

an attorney to represent any person unable to afford counsel”, not 

appoint a lawyer to serve without fee. 

 In necessarily hereby denying pro se plaintiff Petruska’s 

Motion For Leave to Proceed in Forma Pauperis in the light of the 

foregoing, the court can confirm receipt for this kind of action of 

the nominal filing fee of $25 and also its commitment 

to review this appeal fairly . . . and reply in a timely 

ma[nn]er as this [ETA] decision affects further 

participation in job training and unemployment 

compensation opportunities[,] 

to quote from his articulate, written submission on the precise 

nature of the plaintiff group of workers’ appeal. 

 

 To this end, the plaintiffs may have until December 29, 

2006 to present or re-present in writing their arguments in support 

of their requested relief on the merits. If there is any such 

additional written submission, the defendant may respond thereto on 

or before January 26, 2007. 

 So ordered. 

Dated: New York, New York 

 November 21, 2006 

 /s/Thomas J. Aquilino, Jr. 

 Senior Judge