Former Employees of Fairchild Semi-Conductor Corp. v. United States Secretary of Labor , 30 Ct. Int'l Trade 1817 ( 2006 )

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 compensa-
tion, 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