by Roberta Cardoso dos Santos

In view of this, the concept of administrative appeal in legal scholarship was first analyzed, exploring its different modalities, since it is essential to understand the subject discussed. Second, its main characteristics were studied, also based on scholarly understanding.

In addition, the cases in which a hierarchical administrative appeal is admissible were examined, both for ordinary autonomous agencies and for special autonomous agencies, given their different operating regimes.

Finally, a conclusion of the research was presented, seeking an in-depth understanding of the grounds for admissibility of the appeal analyzed.

Concept

First, it is worth noting that an administrative appeal can be defined as one of the possible means by which individuals can prompt the public administration to re-examine an act. From this perspective, jurist José dos Santos Carvalho Filho states that administrative appeals are formal means of administrative control, through which the interested party requests the Administration body to review a given administrative act [1].

On this basis, it can be said that there are different types of administrative appeals, such as the representation, the administrative complaint, the request for reconsideration, the review of administrative res judicata, the hierarchical appeal and the improper hierarchical appeal.

The representation is the administrative remedy for reporting irregularities to the public administration itself or to oversight bodies, such as the Public Prosecutor’s Office or the Court of Accounts.

The administrative complaint is the act by which an individual, whether a private party or a civil servant, submits a claim to the public administration, seeking recognition of a right or the correction of an act that harms or threatens to harm them.

The request for reconsideration seeks re-examination of the act by the same authority that issued it. The review appeal, in turn, is used by a civil servant punished by the administration to have the decision re-examined if new facts arise that may demonstrate their innocence. It may be requested at any time by the interested party, their attorney or third parties.

The review of administrative res judicata seeks to change a decision that has become irreversible by the administration itself, that is, when an act becomes or is by nature irrevocable.

Finally, hierarchical appeals are requests for re-examination of the act addressed to an authority superior to the one that issued it. They are called “proper” appeals when addressed to the immediately superior authority within the same body in which the act was performed, as a result of hierarchy.

On the other hand, there is the exceptional figure of “improper hierarchical appeals”, which, according to Maria Sylvia Di Pietro, are those addressed to authorities or bodies not part of the same hierarchy as the one that issued the act [2]. The specific features of this appeal are discussed below.

Cases of admissibility

Having understood the concept of the institution, the cases in which an improper hierarchical administrative appeal is admissible must be described, and it is worth citing Carvalho Filho’s view in his work Controle de Administração e Responsabilidade do Estado:

“The term ‘improper’ means that there is no hierarchical relationship of subordination between the controlled body and the controlling body, but rather a relationship of linkage, since they are different legal entities or bodies belonging to different legal entities. For this reason, when there is an appeal against an act of the President of a state public foundation to the State Secretary or to the Governor of the respective State, we have an improper appeal. It should be noted that the admissibility of this appeal depends on an express legal provision, since, in this case, there is no hierarchical relationship.” (CARVALHO FILHO, 2018, p. 892) [4].

As is characteristic in the field of appeals, the hierarchical appeal covers both legality and merits. Regarding the merits, the interested party requests that the act be amended; regarding legality, they request its annulment.

In general, the most controversial issue regarding improper hierarchical appeals relates to their admissibility against decisions adopted by regulatory agencies, insofar as they are addressed to the respective ministries of the regulated sector, to which the agencies do not owe hierarchical subordination in the same way as bodies of the direct and indirect administration. However, this difficulty does not mean that this type of appeal would be inadmissible.

Take, for example, the case of ANTT (National Land Transportation Agency), whose enabling statute (Law 10,233/01), particularly in its articles 66 to 68 (the section on the agency’s decision-making process), does not prohibit administrative control of the acts of this regulatory agency through an improper hierarchical appeal to the Ministry of Transportation.

On the contrary, ministerial supervision is present in several provisions, and where the legislator made no exception, it is not for the Executive to do so. Likewise, the Law does not expressly state that ANTT has the final say on matters within its remit, unlike, for example, the law establishing Anatel.

Furthermore, it follows from §3 of article 68 of Law 10,233/01 that any interested party has the right to petition or appeal against an act of ANTT, obviously not only through a Request for Reconsideration but also by filing an improper hierarchical appeal. It should be stressed that the Agencies’ submission to public policies defined by the Executive Branch must not be confused with hierarchical subordination, which does not exist under the current regime.

No Executive body may review ANTT’s decisions on its own initiative; only the Ministry of Transportation may review them, when prompted, through the filing of an improper hierarchical appeal by the interested party, if — it should be clarified — the Agency’s decision is inconsistent with the policy guidelines established by that ministry.

For this reason, the admissibility of the improper hierarchical appeal under the current Brazilian regulatory model is upheld. This understanding is grounded in Decree-Law No. 200 of 1967, still fully in force, which, in providing for the organization of the federal administration, governs ministerial supervision of decentralized state entities. Indeed, supervision is dichotomous, establishing a “centric internal control”, through hierarchical appeals against decisions of subordinate bodies, and an “eccentric internal control”, through improper hierarchical appeals against decisions of linked entities.

Classifying autonomous agencies as being “under a special regime” suggests reasonable independence from the Executive and greater administrative and financial autonomy. However, this does not make them immune to the forms of control provided for in the Constitution.

Thus, regulatory agencies are subject to the Executive’s control, especially with regard to ministerial supervision and the President of the Republic’s authority to direct the federal administration.

Article 5, XXXV, of the Constitution provides that such autonomy exists only in the administrative sphere, and judicial review cannot be excluded in any case.

However, it is not unanimously accepted that regulatory agencies, being special autonomous agencies, must be subject to supervision by the ministry and the head of the Executive Branch that would allow the direct public administration to review their decisions through administrative control.

Indeed, it is fair to argue that administrative decentralization, even through special-regime autonomous agencies, does not serve to enable conduct that departs from the central administration’s guidance and that may diverge, to the detriment of individuals, from the government’s public policies and strategies.

Here arises the issue to be addressed: on the one hand, reinforced regulatory autonomy and independence with a view to legal certainty; and on the other, the principles governing the cohesive and hierarchical organization of the public administration.

This possibility of review of the autonomous agency’s acts by an external authority is provided for in Decree-Law 200/67, article 170, which expressly provides that “the President of the Republic, for a relevant reason of public interest, may take over and decide any matter within the sphere of the Federal Administration”.

Therefore, the possibility of an improper hierarchical appeal to the direct administration against decisions issued by ordinary autonomous agencies cannot be denied.

In the case of special autonomous agencies, the most appropriate view is that an improper hierarchical appeal against decisions of regulatory agencies is admissible in cases of non-core administrative activities, departure from government policy and failure to respect the limits of their powers.

On the other hand, this form of challenge would not be admissible when the agency decides a regulatory matter within its remit, as this would undermine its inherent independence.

 

Conclusion

This paper analyzed the concept and admissibility of the improper hierarchical appeal based on academic articles and technical authors in the legal field.

Based on the analysis of the various positions on the subject, as well as the nature of ordinary-regime autonomous agencies, the conclusion reached was that the hierarchical appeal against decisions of such entities is admissible to a limited extent, namely in the cases expressly provided for by law.

Thus, the paper concludes that the possibility of an improper hierarchical appeal to the direct administration against decisions issued by ordinary autonomous agencies cannot be denied. As for special autonomous agencies, the appeal is inadmissible when the agency decides a regulatory matter within its remit, as this would undermine its inherent independence.

 

[1] CARVALHO FILHO, José dos Santos. Manual de Direito Administrativo. 32nd ed. São Paulo: Atlas, 2018, p. 889.

[2] Di Pietro, 2019, p. 801

[3] Carvalho Filho, 2008, p. 892

 

References

ARAUJO, Luiz Henrique Diniz. Hipóteses de cabimento de recurso hierárquico e impróprio contra decisões de agências reguladoras. Revista de Informação Legislativa, v. 45, n. 178, p. 243-250, 2008.

CARVALHO FILHO, José dos Santos. Manual de Direito Administrativo. 32nd ed. São Paulo (SP): Atlas, 2018.

MELLO, Celso Antônio Bandeira de. Curso de direito administrativo. São Paulo: Malheiros, 2005.

DI PIETRO, Maria Sylvia Zanella; FILHO, José; ALMEIDA, Fernando. Controle da Administração Pública e Responsabilidade do Estado – Vol. 7 – 2022 ed. São Paulo (SP): Revista dos Tribunais. 2022.

DI PIETRO, Maria Sylvia Zanella. Direito Administrativo. 25th ed. São Paulo (SP): Atlas, 2019.

 

Decree-Law No. 200 of February 25, 1967. Provides for the organization of the Federal Administration, establishes guidelines for Administrative Reform and makes other provisions. Diário Oficial (da República Federativa do Brasil), Brasília, supplement, Mar. 27, 1967.

Law No. 10,233 of June 5, 2001. Provides for the restructuring of waterway and land transportation, and creates the National Council for Transportation Policy Integration – Conit, the National Land Transportation Agency – ANTT, the National Waterway Transportation Agency – Antaq, and the National Department of Transportation Infrastructure – Dnit. Diário Oficial Eletrônico (da República Federativa do Brasil), Brasília, P.1, Jun. 6, 2001.

 

Article originally published on the Consultor Jurídico portal (in Portuguese), on 10.25.2023.