Federal Court Resources: Ordinary, Special and Extraordinary Remedies

Chapter VI: Two Resources for Federal Court or Supreme Court of Justice

Section I: Regular Resources

Article 539. Ordinary appeals shall be judged as follows:

• I - By the Supreme Court: habeas corpus, mandamus, habeas data, and injunctions decided in single instance by the Superior Courts, when their decision is a denial;
• II - By the Superior Court of Justice:
  • a) mandamus and injunctions decided in single instance by the Federal Regional Courts or by the courts of the States and the Federal District and Territories, when the decision is a denial;
  • b) cases in which a foreign State or international organization is a party on one side, and a Municipality or a person domiciled or resident in the Country is on the other.

Sole Paragraph. In the cases referred to in item II, letter "b", interlocutory appeals are fit against interlocutory decisions.

Article 540. The resources mentioned above apply, regarding the admissibility requirements and the procedure in the Judge of origin, to the provisions of Chapters II and III of this title, complying, in the Supreme Court and in the Superior Court of Justice, with the provisions of their internal regulations.

Constitutional Regular Resources

• It is an appeal interposed against a decision of a court panel (TJ, TRT, etc.).
• It is one of the resources for STJ and STF.
• Purpose: Reappraisal of decisions issued in actions of courts of original jurisdiction.
• It is a fancy appeal.
• The Ordinary Appeal (ROC) seeks to reform or annul acórdãos in the hypotheses mentioned in CF/88 art. 102, II (STF) and art. 105, II (STJ).
• Admissibility: It has a double degree of admissibility, equal to an appeal. The difference is that it does not go to the regular judge, but rather to the rapporteur of the panel that judged the case, who will be the first one to perform the admissibility judgment.

Article 102 of the Federal Constitution

The Supreme Court is primarily competent to safeguard the Constitution, and it is incumbent upon it to:

II - Judge, in ordinary appeal:

a) habeas corpus, mandamus, habeas data, and injunctions decided in single instance by the Superior Courts, when the decision is a denial;

b) political crimes.

Article 105 of the Federal Constitution

The Superior Court of Justice is competent to:

II - Judge, in ordinary appeal:

a) habeas corpus decided in last instance by the Federal Regional Courts or by the courts of the states and the Federal District and Territories, when the decision is a denial;

b) mandamus decided in single instance by the Federal Regional Courts or the courts of the states and the Federal District and Territories, when the decision is a denial;

c) cases in which a foreign State or international organization is a party on one side, and a Municipality or a person domiciled or resident in the country is on the other.

Processing

• Deadline: 15 days from the decision.
• The same processing rules of the Appeal apply (CPC art. 540); therefore, when provided by the majority, the interposition of Infringing Embargos is possible (if not absolutely fit).
• Pre-questionamento requirement: No, since we are still discussing matters of law.
• In this case, analysis of facts and evidence is allowed in the STF and STJ because it is not a special resource, but a regular court resource. It is a second degree of jurisdiction (which is why we can never say that the STJ and STF never analyze facts and evidence). It has a nature similar to an Appeal.

Special and Extraordinary Remedy

They are exceptional because they have specific hypotheses and admissibility requirements that must be met much more rigorously.

They allow only the appreciation of matters of law / legal thesis, without supporting or reviewing facts, evidence, and raw facts.

For its interposition, the resource must fit into specific admissibility hypotheses provided in the CF.

Example: You buy a broken TV, ask for your money back or repair in Court according to the Consumer Defense Code (CDC) art. 18. The Judge says you have no right. You appeal to the tribunal, which unanimously denies application of the CDC, claiming it is a contract. With no further appeal to the STJ, you go to the STF—a place where facts and evidence are no longer analyzed (whether I really bought it at this store, if the TV really came broken, or if I used it the wrong way), because those were already seen in lower courts. What we analyze is the law itself, meaning whether that decision is truly tolling a right. This is the legal thesis.

In this resource, you cannot innovate (except for new facts or those that arise to prove what was not said before). The pre-obligation of questioning the matter is that it must have been discussed previously at the STJ and STF so that the fact cannot be treated as new. Pre-questioning means asking the judge to rule on such an article. With the target on article 18, when going up, you can argue that the judge who judged unfairly denied validity to your action regarding Art. 18 of the CPC, which is a federal law.

Professors suggest that while in court, always ask the judge to explicitly manifest the basis for why an article is determined or denied, so that you can later ask a superior court to grant your rights because they violated that law.

Common Features

• a) Requires prior exhaustion of regular channels;
• b) They are not intended for the correction of injustice verified in the acórdão (the Minister will not check if the judge failed to hear your witness, but rather if your right was denied or if the law/acórdão of the CF was offended);
• c) They do not serve for a mere review of matters of fact (they only allow the legal thesis);
• d) Bipartite or split admissibility system (it has double admissibility—one phase before the 'a quo' and another before the 'ad quem');
• e) Interposed through a petition to the origin body in which the elements/requirements of art. 541 of the CPC must be pointed out.

Article 541. The special resource and extraordinary appeal, in the cases referred to in the Federal Constitution, shall be interposed before the president or vice-president of the competent court, in different petitions containing:

• I - The exposition of the fact and the law;
• II - The demonstration of the admissibility of the interposed resource;
• III - The reasons for the request to reform the contested decision.

Along with the interposition petition, the reasons for the appeal must already be offered. Do not lose the deadline here; you have 15 days.

• If the acórdão violates both federal law and the Federal Constitution, special and extraordinary resources must be presented simultaneously.
• These are two different necessary petitions, each accompanied by its respective reasons (one for the STJ and one for the STF).
• Once presented, the other party will be notified to offer counter-reasons (15 days).
• After the counter-reasons: admissibility judgment (performed by the vice-president of the court, then sent up).
• When two resources are due, if only one is interposed, preclusion will consume the interposition of the other.
• f) Specific admissibility grounds are in the CF and not in the CPC.
• Verifying this is, in theory, the hypothesis of extraordinary constitutional permissive resources related to both;
• g) Lack of suspensive effects (CPC art. 475). However, the judge may order a suspensive effect to keep rights safe from irreparable damage or difficult repair. (Example: A lower court judge ordered you to pay an amount under the conviction that you will win, and the person cannot return it to you. You ask the judge to assign suspensive effect so you only pay when the appeal is judged).

Pre-questionamento

It is an admissibility requirement.

• Necessity: The federal or constitutional question must have been ventilated (discussed) in the lower courts;
• The question must have been raised and decided before.
• Exceptions: In two situations, a RESP or RE can be admitted without pre-questionamento:
  • When a totally new basis appears exclusively in the appellate acórdão (it arose now, and I could not question it before); example: This happens a lot when the judge makes an extra petita or ultra petita judgment.
  • When Declaratory Embargos are filed, but the court refuses to consider the question, offending RESP art. 535 of the CPC. (Here you are signaling that the court denied judgment, but it is still necessary to enter the RE. The way is to enter it stating that the court denied judgment and will have to appreciate it).

The declination of the decision regarding the federal or constitutional question fit for pre-questionamento means that declaratory embargos will not be considered dilatory. (Súmula STJ 98).

Explicit Pre-questionamento

Done in an express and unequivocal way, pointing out the vulnerable legal or constitutional device, demonstrating it clearly in the appellate acórdão.

Implicit Pre-questionamento

Express reference to the violated federal or constitutional device of the challenged acórdão is not strictly required.