by Giuseppe Giamundo Neto, Davi Madalon Fraga and Fernanda Leoni

In Case Law Bulletin 431, the Federal Court of Accounts (TCU) published the headnote of Judgment 2,770, issued by the plenary in a session held on 12/13/2022, which stated that “in external oversight proceedings, matters of public policy, such as the limitation of punitive or reimbursement claims, cannot be re-discussed through motions for clarification or at the party’s request by simple petition, nor can they be reviewed on the court’s own motion, given the application of preclusion pro judicato”.

The case involved Motions for Clarification filed against a judgment in a Special Accounts Review related to alleged irregularities in contracts entered into by Petrobras for the construction of the Campos Basin Exploration and Production Unit. In addition to alleging an omission, the motion contained an alternative request for it to be received as a simple petition, in line with the guarantee provided for in article 5, item XXXIV, subparagraph “a”, of the Federal Constitution.

In short, the movant requested the application of the court’s new understanding of the five-year limitation period for punitive and reimbursement claims. The request was based on article 10 of TCU Resolution 344/2022, which allows limitation to be recognized on the court’s own motion or at the party’s request, at any stage of the proceedings. The new guidance would benefit the movant, since the TCU’s position until then was that the debt was not subject to limitation.

Noting that the emergence of a new regulatory guideline from the court, even if fairer, would not authorize the abusive use of an appeal, Justice Walton de Alencar, the reporting justice, held that the motions were merely dilatory and actually sought to change the merits of the previous decision, which had considered reimbursement to the public treasury not subject to limitation.

While confirming that limitation is a matter of public policy, the Justice noted that it could only be recognized if the matter had not yet been decided, due to preclusion pro judicato, which would prevent the issue from being re-discussed through motions for clarification. In this regard, he relied on a decision of the Superior Court of Justice (STJ), according to which “matters of public policy are subject to preclusion pro judicato, and therefore cannot be revisited if they have already been the subject of a prior judicial ruling^[1]”.

Contrary to what it may seem, this is not a settled issue in procedural law. Preclusion pro judicato, when accepted, relates to certain stabilizations to which the court is bound^[2] — such as res judicata itself — representing the party’s right not to have the certainty of the decision’s content affected. It is therefore a guarantee, not a restriction on the party’s procedural ability to raise matters of public policy at any time and at any level of jurisdiction.

To invoke preclusion pro judicato, which is nothing more than a type of consummative preclusion, the matter would need to be settled or, in terms of accounts proceedings, administrative res judicata would need to have been established, which had not occurred in the case assessed, in which the matter could still be discussed through motions for clarification — one of the measures capable of changing the decision, by subsidiary application of article 494, item II, of the CPC.

It is also important to clarify that Resolution 344/2022, in addition to not establishing any transition rule for the institution, only prohibited recognition of the five-year limitation period in proceedings that had already become final when it entered into force^[3], reinforcing the understanding that the rule applied immediately to all proceedings not yet settled, and that the parties could, while there was still room for re-discussion, bring the matter to the attention of the reporting justice or the plenary.

As if all this were not enough, it must be considered that, since this was a new fact, concerning the regulation of a matter not previously governed by the TCU, the party used the first opportunity it had to speak in the proceedings, invoking its rights. Indeed, preclusion does not apply to supervening facts^[4], since this is not the re-discussion of an exhausted issue, but a new issue under debate: the prevalence of a new legal framework, with immediate effect, that favors legal certainty^[5].

The TCU’s position, therefore, is not correct. There is no preclusion regarding a matter of public policy (limitation) whose content has not yet become final, even if raised through motions for clarification. The Court’s guidance on this matter should be changed, especially in light of its own recently issued regulation.

^[1] See STJ, AgInt no REsp 1,756,189/SP, Reporting Justice Paulo de Tarso Sanseverino, Third Panel, decided on 6/8/2020, DJe of 6/12/2020.

^[2] See: SCARPINELA BUENO, Cássio. Curso sistematizado de direito processual civil. Vol. 01. 8th ed. São Paulo: Saraiva, 2014, p. 489.

^[3] See: “Art. 18. The provisions of this resolution apply only to proceedings that had not become final at the TCU by the date of publication of this rule”.

^[4] See: “The preclusion defended here obviously does not apply in view of a supervening fact. As already stated, it is possible that, due to a supervening fact, a requirement for the admissibility of the proceedings ceases to exist (examples: supervening absolute lack of jurisdiction and loss of procedural capacity). Precisely because it is a supervening fact, the previous decision recognizing the regularity of the proceedings does not concern it, and a new decision is required, which will have a different object: the new issue” (DIDIER JR. Fredie. Curso de direito processual civil. Vol. 01. 19th ed. Salvador: Ed. Jus Podivm, 2017, p. 787).

^[5] See article 30 of the LINDB: “Public authorities must act to increase legal certainty in the application of rules, including through regulations, administrative summaries and answers to consultations”.

Article originally published by Jota (in Portuguese), on 02.17.2023.