Judgment No. 135

Complaint No. 228

Review of Judgment No.126

Christina Cerna v. Secretary General of the Organization of American States

THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,

Composed of Dr. Enrique Rojas Franco, President; Dr. Carlos Balsa D'Agosto, Vice President, and Dr. Alejandro Tinoco, Judge,

Has before it for judgment the proceedings on the complaint filed by Ms. Christina M. Cerna for review of Judgment No. 126.

The complainant acted on her own behalf and the Secretary General was represented by Louis G. Ferrand, an attorney in the Department of General Legal Services, all pursuant to Article 22 of the Rules of Procedure of the Tribunal.

WHEREAS:

    I. On April 8, 1996, the complainant, Ms. Christina M. Cerna, filed a complaint, as provided by Article II of the Statute of the Administrative Tribunal, against the Secretary General of the OAS and, having complied with the requirements as to her personal and official status, stated, inter alia:

That she was included on the Appendix B list, as a staff member "complainant" in the case that gave rise to Judgment No. 124, but was expressly excluded from the list of beneficiaries of the judgment for not having exhausted administrative remedies;

That, in accordance with Article IX of the Statute of the Tribunal of the Organization of American States, the judgment of which the complainant seeks partial review is Judgment No. 126; and that the report of the hearing officer, Dr. Hugo Caminos, is the fact/document which the complainant believes to be a deciding factor that was not known to either the Tribunal or the complainant at the time Judgment No. 126 was issued;

That in Judgment No. 126 the Tribunal sought to prevent any further litigation in this case and decided to find without merit any other motion by the complainants not already expressly denied in the judgment; that, in the complainant's opinion, that finding is intended to discourage new appeals not previously lodged, but cannot be construed as nullifying the protection provided under Article IX of the Tribunal's Statute, which guarantees complainants the right of appeal in case of error; and that such an appeal is pursued in this action;

That the complainant was on annual leave during the entire month of June 1991, returned to the OAS in July 1991, and, under the Staff Rules, had 15 days to present a request for a hearing; that, nevertheless on July 17, 1991, the Director of the Department of Human Resources sent the Staff Committee a memorandum informing "all staff members who have requested a hearing regarding the program-budget resolution for the 1992-93 biennium that the Secretary General has concluded, finding that the hearing and reconsideration process provided under Chapter XII of the Staff Rules is inapplicable in this instance"; and that the memorandum, presented as Appendix C to Complaint No. 192, concluded that all administrative remedies provided by the General Secretariat had been exhausted in this case;

That at the same time the Staff Committee concluded that staff members who, because of their absence, had not requested a hearing under Rule 112.1 had no reason to do so, since the Department of Human Resources had officially informed the Staff Committee that the procedure was inapplicable and all internal remedies had been exhausted;

That, on December 13, 1995, the complainant formally requested a copy of the hearing officer's report from the Director of the Department of Human Resources; that, on December 15, 1995, the Director of Human Resources informed her that, in Judgment No. 126, the Tribunal had denied her petition to be included in Judgment No. 124, and the case had consequently been closed; that the same motion was submitted by the Staff Association but was also denied; and that the document is crucial in this case and neither the Tribunal nor the party seeking review knew of it;

That the complainant believes that the Secretary General's clearly inconsistent position that, on the one hand, the hearing and reconsideration procedure were inapplicable and, on the other, they are required, is based upon the hearing officer's report;

That this Tribunal decided in Judgment No. 124 that the hearing procedure was applicable, but provided no explanation as to why possible complainants would have had to request the hearing;

That the doctrine of estoppel, which bars a party from inconsistent acts, bars the Secretary General from asserting that the hearing and reconsideration process provided under Chapter XII of the Staff Rules is inapplicable in this case and later arguing that the complainant did not invoke the hearing and reconsideration process; and

That the complainant requests the Tribunal to amend in part its decision in Judgment No. 126 by finding that the exhaustion of the hearing and reconsideration procedure was, in her case, inapplicable after July 17, 1991, since the Administration had recognized the Staff Committee as the legal representative of all the staff members party to this joint action, since a hearing had already been requested, and since the Administration had declared the hearing and reconsideration process inapplicable; and that the complainant requests the Tribunal to clarify Judgment No.126 by ordering the Administration to hand over the hearing officer's report, which explains the obvious contradiction in the fact that the Administration demands the exhaustion of internal procedures that were deemed "inapplicable" and that the complainant is informed of the measures she ought to have taken in order to be included as a beneficiary.

    II. The attorney for the Secretary General answered the complaint in due form and time, stating, inter alia:

That this request for review is the third attempt by the complainant to prove why she should have been included as a complainant in Complaint No. 192 (Judgment 124); that she now argues that she recently "discovered" the existence of the hearing officer's report with which the complainants in Judgment No.124 had begun their action; and that the facts show, however, that the OAS Staff Association and its lawyers had already known in 1991 of the existence of the hearing officer's report and that the Tribunal also knew of the report, since the Staff Association and its lawyers had referred to it in Complaint No. 192;

That the Complainant seeks review under Article IX of the Tribunal's Statute; that, in Judgment No. 121, the Tribunal confirmed that a complainant bears the burden of proof that he or she has met every criterion for seeking review under this article; that, in this action, the complainant has not satisfied this requirement of proof; that the facts show that the Tribunal knew of the existence of the hearing officer's report in complaint No. 192; that the complainant, through her attorneys and representatives, knew of the report; that if the contents of that report were not disclosed to the Tribunal, that the fact was due to her negligence and that of her lawyers and other representatives; that the report of the hearing officer was an advisory opinion, not a document of such nature as to constitute a deciding factor for the Tribunal; and that the complainant did not meet the 30-day and one-year statutory deadlines for seeking review under Article IX;

That the complainant's motion is inadmissible because she did not present it within 30 days of discovering the hearing officer's report and within a year from the issuance of the judgment; that, moreover, although the complainant states in her motion for review that she seeks review of Judgment No. 126, one need only read the petition in full to conclude that the judgment she in fact challenges is Judgment No. 124, in which the Tribunal decided to exclude her from the list of complainants in complaint No. 192; that Judgment No. 126 simply confirmed that decision; that Judgment. No. 124 is dated May 13, 1994; and that the complainant did not present her petition for review until April 8, 1996, almost two years after the date of Judgment No. 124, the actual decision of which review is sought in this action;

That the respondent is entitled to costs and fees in this action because the appeal lacks merit, having no basis in fact or law; and that the facts show that the complainant has filed an entirely unfounded complaint, lacking any basis in this litigation, and, hence, the Tribunal should order her to pay the respondent his defense costs; and

That the respondent respectfully requests the Tribunal to issue an order granting the respondent's motion to dismiss the complainant's motion to review, and to order the complainant to pay respondent's costs; and that the respondent requests that, should this motion to dismiss be denied, the respondent requests the Tribunal grant the respondent a further 30 days to respond to new arguments and observations presented by the complainant.

    III. The complainant presented her written observations in due form and time, and, having reiterated the above, states, inter alia:

That the complaint is admissible because it was presented within the one-year deadline from the issuance of Judgment No. 126 and the deadline of 30 days from the "discovery" of the document; that the complainant recognizes that Judgment No. 126 refers to matters addressed in Judgment No. 124; that, however, Judgment No. 126 constitutes a separate decision and the complainant seeks review of Judgment No. 126; and that, as to the second requirement, the complainant could not have "discovered" the contents of the document, since it has not been submitted by the Director of the Department of Human Resources, for which reason the 30-day period has not yet begun;

That the injustice in this case arose from the refusal of the request for a four-week extension of the hearing period which would have allowed staff members who did not know of this action to join it, and from the failure to inform as to what they needed to do to join the class; that it was clear to the respondent and the complainant that, given the lack of internal resources, appeal to the Tribunal was the only remaining recourse; and that the complainant is convinced that this is the conclusion reached by the hearing officer and that the respondent refuses to submit his report for that reason;

That Judgment No. 126 does not preclude this action, since, under Article IX of the Statute of the Tribunal, errors made by the Tribunal may be corrected at any time; that both the complainant and the respondent have maintained that the hearing process was inapplicable in this case, and that the case should remain in the hands of the Tribunal; that, consequently, this case should have been admitted under Article VI 1.b of the Statute of the Tribunal; that the Tribunal committed error by ruling in Judgments Nos. 124 and 126 that internal remedies had been duly exhausted; and that the complainant requests that it remedy this error; and

That the complainant asks the Tribunal to deny the respondent's motion to dismiss and to consider the motion as that party's answer; that, should the Tribunal fail to do so, the complainant respectfully requests that the Tribunal allow her to respond to issues raised in the answer; that the complainant respectfully requests that the Tribunal review Judgment No. 126 and rule that any subsequent exhaustion of the hearing and reconsideration procedure was inapplicable in her case, since the procedures had been declared inapplicable; that the complainant requests, moreover, that the Tribunal clarify Judgment No. 126 by ordering the respondent to hand over the hearing officer's report; and that, should this not occur, she requests the Tribunal to review Judgment No. 126, so as to include the complainant and all other persons who had authorized the Staff Association to represent them before the Tribunal.

    IV. The attorney for the respondent presented his written comments in due form and time and, having reiterated all the above, started inter alia:

That whereas the complainant admitted in her complaint that her legal representatives knew of the existence of the hearing officer's report in 1991, she states that this knowledge cannot be imputed to her; and that, in the answer to this complaint, the respondent proves that the Tribunal knew of the existence of this report as of 1991;

That the admission by the complainant that she personally knew of the report in 1991 destroys the basis of this complaint; and that the fact that she requested a report neither in 1991 nor prior to presenting Complaints Nos. 192 or 208 means that there are no valid grounds for requesting it now, when the Tribunal has already considered the matter and issued two judgments thereon; and

That the respondent requests the Tribunal to issue an order granting the motion for inadmissibility and ordering the complainant to pay costs; and that, if the motion for inadmissibility is denied, the respondent requests that the Tribunal grant him a further 30 days to respond to new arguments and observations.

    V. On September 25, 1996, pursuant to the Tribunal's Rules of Procedure, Article 14, paragraph 2, this complaint was placed on the list of matters pending consideration. Once the President had set the opening date of the forty-first regular session, the pertinent steps were taken and the Tribunal was composed of Dr. José Enrique Rojas Franco, President, Dr. Carlos Balsa D'Agosto, Vice President, and Dr. Alejandro Tinoco, Judge. The Tribunal began its session on October 15, 1966, and deliberated on the case sub judice.

Having examined the proceedings, the Tribunal now

CONSIDERS

I. COMPETENCE OF THE TRIBUNAL

    1. The Tribunal is competent to hear this complaint, pursuant to Article II of the Statute of the Administrative Tribunal of the Organization of American States.

II. MOTION OF THE COMPLAINANT

    1. Having examined the entire record of the various complaints submitted by the petitioner in various forms, the Tribunal concludes that her actions and motion do not meet any of the criteria in the Statute of the Tribunal under which it may grant an appeal. In fact, since Judgments Nos. 124 and 126 have become final decisions and no appeal is possible, Ms. Christina M. Cerna's request has no merit whatever. It has been shown that this matter concerns a motion that has already been denied by the Tribunal, which denial, in turn, has been reaffirmed by a second judgment, Judgment No. 126.

    2. This matter involves the same petitioner and the same request under the guise of a different motion. It presents an argument based on the existence of a hearing officer's document, the content of which does not meet the criteria under Article IX of the Statute for the review of judgments. Consequently, the Tribunal again finds the complainant's motion groundless.

III. THIRD PARTY CLAIMS

    1. A group of individuals having various contractual relationships with and functions in the General Secretariat of the Organization of American States presented a motion for intervention, so as to join the suit should the motion in this complaint be granted, since, whether favorable or not, the decision could affect the interests of those petitioners as third parties.

    2. The Tribunal observes that, in denying Ms. Christina M. Cerna's request, it has established that no legal interest of the third-party petitioners may be prejudiced by the Tribunal, according to the principle that the accessory follows the principal (Accessorium Sequitur Principale).

By virtue of the foregoing and pursuant to Article VII of its Statute, the Tribunal unanimously

RESOLVES:

    1. To deny the Complainant's motion in this complaint.

    2. To deny the motions for intervention in this proceeding according to the principle that the accessory follows the principal (Accesorium Sequitur Principale).

    3. To exempt the parties from costs for the proceeding, because it is directly related to Judgment No. 124.

Let notice be given.

Washington, October 24, 1996.

José Enrique Rojas Franco, Esq. / President

Carlos Balsa D'Agosto, Esq. / Vice President

Alejandro Tinoco, Esq. / Judge

Noemi Cohen, Esq. / Secretary