Judgment No. 121

Complaint No. 199

Janet Ector v. Secretary General of the Organization of American States

THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES,

Composed of José Ajuricaba da Costa e Silva, President; Enrique Rojas Franco, Vice President; and Carlos Balsa D'Agosto, Judge,

Has before it for judgment the proceedings in the petition filed by Janet Ector against the Secretary General of the Organization of American States.

WHEREAS:

        I. On March 8, 1993, Mrs. Ector applied to the Tribunal for a review of its Judgment No. 119 of November 13, 1992, wherein it dismissed the petition she had filed on June 3, 1992, seeking review of Judgment No. 114 of June 7, 1991.

        II. On April 7, 1993, the Secretariat of the Tribunal reported that pursuant to resolution No. 264 of the Administrative Tribunal, dated June 7, 1991, the proceedings in Complaint No. 199 were held in abeyance to enable Tribunal to rule on the petition at its next session, in conformity with Article 21 of the Tribunal's Rules of Procedure. The view was that in principle the application for review did not fit any of the exceptional cases described in Article IX of the Statute of the Tribunal.

        III. The petition for review contains a number of allegations, among which the most important are the following:

        1. The Complainant argues that the Tribunal never took cognizance of or examined the merits of her alleged complaint, a conclusion she infers from the following statement in paragraph III.6 of Judgment No. 119: "It must be expressly noted that in its Judgment No. 114 the Tribunal did not enter into consideration of the substance of the Complainant's assertions, since it sustained the objection raised by the General Secretariat that her appeal was untimely."

        2. The Complainant introduces documents relating to the decisions of the Department of Human Resources, documents which she alleges the Tribunal has never before seen and which, she believes, led the Secretary General to conclude that she had agreed to be separated from service under the terms of Article 52(f) (sic,) when in fact she had asked to be considered for a future reduction in force (RIF).

        3. The Complainant adds that the General Secretariat's legal representative did not circulate the full text of her letter of September 3, 1979, and again asks the Tribunal to require said representative to show the full text.

Having examined the proceedings the Tribunal now,

CONSIDERS:

I. THE COMPLAINANT'S REQUEST

        1. The allegations made by the Complainant in this Complaint No. 199 involve the same cause of action, the same object and the same claim as the allegations made in Complaint No. 197, which was settled in Judgment No. 119. This fact alone, provided for in Article VIII.2 of the Statute of the Tribunal, justifies a finding, ab initio, that the present complaint is inadmissible inasmuch as it plainly violates the principle of res judicata.

        2. Nevertheless, the business of the Tribunal is to ascertain whether the Complainant has introduced new documents or alleged new facts unknown to both her and the Tribunal at the time judgments Nos. 114 and 119 were rendered in complaints Nos. 184 and 197, respectively. The Tribunal must also ascertain whether those new documents or facts qualify as one of the exceptional cases to which Article IX of the Statute alludes, which would give the Tribunal the authority to review a judgment that has become res judicata.

        3. Contrary to what the petitioner alleges (at page 11), filing a petition after the deadline stipulated in paragraphs 1 to 3 of Article VI is not an absolute right. That right exists only in the "exceptional cases", which the Complainant must substantiate, that form --strictly-- the legal argument. Only in those cases is the Tribunal authorized to examine and conceivably rule in favor of a petition to review a judgment already rendered.

        4. The Tribunal can consider such a review strictly in the "exceptional cases, and for reasons that should be explained in the judgment", as provided in Article VI.4 of the Statute. Arguing that the injustices alleged by the petitioner constitute an exceptional case based on the principle of equity -as the petitioner prays at page 27, is not sufficient. If there is a case for equity that alone will not suffice to give the Tribunal the authority to review a judgment already rendered. Under Article IX.1 of the Statute of the Tribunal, other requirements must be met. The Complainant's request must be based on "the discovery of a fact or document of such a nature that it may be a decisive factor and which, when the judgment was given, was unknown to the Tribunal or to the party seeking review ...."

        5. We will examine the preconditions that the law requires for review to be considered:

a. The party who would have a judgment reviewed must "discover" a fact or document; in other words, the Complainant may not have had any prior knowledge of that fact or document;

b. Discovery must occur subsequent to the judgment that the petition for review would have modified or vacated, since if the party knew or could have known the fact before judgment was rendered, then said party had, under the principle of due process, the opportunity to exercise his or her right to introduce all facts or documents that supported his or her claim. It is unreasonable to demand that the period during which that right can be exercised be extended beyond the rendering of a judgment, since that would strip the proceeding in question of any legal certainty.

c. But Article IX.1 of the Statute further stipulates that the "ignorance" of the party seeking review must not be "due to fault or deceit by that party". In other words, if the complainant was in a position to know the facts or documents but did not know them either deliberately or through his or her own negligence -which will have to be determined as the petition seeking review is processed- then those facts or documents will be inadmissible for purposes of supporting the petition seeking review.

d. That the document or fact is discovered subsequent to the judgment is not sufficient in itself; Article IX.1 of the Statute also stipulates that said document or fact must also be "of such a nature that it may be a decisive factor" for the Tribunal to have sufficient "reasons that should be explained in the judgment", as required under Article VI.4 of the Statute of the Tribunal.

e. The fact or document must be unknown to both the complainant and the Tribunal. The requirement is not that either the party or the Tribunal be ignorant of the decisive fact or document discovered subsequent to the judgment. The legal requirement is that the fact or document "was unknown to the Tribunal or to the party seeking review", as stipulated in Article IX.1 of the Statute. In other words, the word "or" is a conjunction, meaning that both conditions must obtain: i.e., both the Tribunal or the party seeking review must be ignorant of the decisive fact or document at the time the judgment is rendered.

f. There is a time frame within which a party seeking review must exercise his or her right. The rule stipulates that "Such application must be made within thirty days of the discovery of the fact or document and within one year of the date of the judgment." Once these time periods have expired, the right to petition for review is extinguished and the judgment is confirmed -ope legis- as res judicata.

g. All the legal preconditions listed above must be present and must be proven by the party asserting the right to have a judgment already given reviewed.

II. ANALYSIS OF THE MATTER

        6. Administrative Tribunal Judgment No. 114, of June 7, 1991, dismissed Complaint No. 184, filed by Mrs. Ector on March 18, 1990, against the decision of the Secretary General of February 28, 1987, to separate her from service in the interest of the Organization, pursuant to Article 53 (f) of the General Standards.

        7. It was dismissed "in all its parts", as the operative part of the judgment states. In other words, every claim brought by the party filing the complaint was settled in the judgment, which dismissed the complaint.

        8. Under Article VIII.2 of the Statute, the judgments of the Tribunal are final and cannot be appealed, which means that they have the authority of res judicata.

        The definition of res judicata that appears on page 463 of West's Law & Commercial Dictionary, 1985 edition, as understood in Anglo-Saxon common law, reads as follows:

  RES JUDICATA. A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. Matchett v. Rose, 36 III.app.3d 638, 344 N.E.2d 770, 779. And to be applicable, requires identity in thing sued for as well as identity of cause of action, of persons and parties to action, and of quality in persons for or against whom claim is made. The sum and substance of the whole rule is that a matter once judicially decided is finally decided. Massie v. Paul, 263 Ky. 183, 92 S.W.2d 11, 14.

        Cited below is the definition of res judicata in Ibero-American customary law, given in the "Diccionario Enciclopédico de Derecho Usual" by Guillermo Cabanellas (1981 edition, Volume 1, page 397):

COSA JUZGADA. Lo resuelto en juicio contradictorio, ante un juez o tribunal, por sentencia firme, contra la cual no se admite recurso, salvo el excepcionalísimo de revisión. La cosa juzgada, según milenario criterio, se tiene por verdad y no cabe contradecirla ya judicialmente, para poner fin a la polémica jurídica y dar estabilidad a las resoluciones. El intento de renovar la causa en tales condiciones encuentra el insalvable obstáculo de la excepción de cosa juzgada.

        9. The facts and/or documents that the Complainant submits to support her claim are not such that they make the application for review admissible given that:

a. The letter from Mrs. Ector, dated September 3, 1979, was not unknown to the party seeking review, since she herself wrote it, and

b. The facts and documents introduced are not the "decisive factors" that give the Tribunal sufficient grounds to toll the statutes of limitations during which Mrs. Ector could have exercised her right but did not.

        10. At page 11 of Complaint No. 199, the Complainant acknowledges that she understands the consequences of the failure to exercise her rights during the period of time stipulated by law. Judgment No. 114 demonstrated that for every opportunity given to her under the General Standards to exercise her right, the Complainant waited until the established statute of limitations for exercising her right had long since expired.

        11. The Complainant disregards the fact that the application for review cannot be admitted unless it is made "within thirty days of the discovery of the fact or document" and that her right to petition for review is extinguished if is not brought "within one year of the date of the judgment", as provided in Article IX.1 of the Statute.

        In the instant case, since the Complainant was unable to show when she discovered the "decisive" facts or documents there is no way to determine whether she did so within the time period that the law provides to make an application for review admissible. Moreover, since Judgment No. 114 on Complaint No. 184 was rendered on June 7, 1991, the time period during which the Complainant could file an application for review based on the facts and responsibilities at issue in that complaint has long since expired.

         12. The Tribunal finds that the memorandum of Mrs. Janet Ector dated September 3, 1979:

a. Was not discovered by its author subsequent to Judgment No. 114;

b. Was presented more than a year after Judgment No. 114 on the decision to separate the Complainant from service with the OAS was rendered, when Article IX of the Statute requires that application be made within one year of the date of the judgment, and

c. Is not the decisive factor to warrant review of Judgment No. 114 and related Judgment No. 119.

        13. The Complainant presents a letter from Mr. Sergio Martínez, dated September 13, 1979, that confirms her new salary in Trinidad and Tobago and addresses other aspects of her transfer that were detrimental to her interests. However, by the time the Complainant challenged those issues the time limits stipulated in the law to file such challenges had expired.

        The maxim of the law is that silence shows consent, so that the Complainant's silence during the period when she did not exercise her right must be construed as acceptance of the amount, mode and conditions of employment.

        14. The Complainant alleges that she was not advised of the of the time limit after which her right to file an action is extinguished (page 14, page 17 and page 22) even though this rule, which applies to staff at headquarters and in the field, was made known to her when she acceded to her original position at headquarters, at which time she was given a copy of the Staff Rules.

        15. The due process argument -invoked by the Complainant on page 27- to accept the application for review is inadmissible since the guarantee of due process was honored with the proceedings that resulted in judgments Nos. 114 and 119. The parties, the object, and the cause of action were the same in both cases.

III. CONCLUSION

        16. On May 18, 1990, the Complainant filed a complaint against the Secretary General's decision of February 28, 1987, that separated her from a post with the Organization in Trinidad and Tobago pursuant to the provisions of Article 53(f) of the General Standards. Following due process, the Tribunal issued Judgment No. 114 of June 7, 1991, which "dismissed the complaint in all its parts ..."

        17. The expression "in all its parts" means that each and every claim brought by the Complainant in the proceedings was dismissed in Judgment No. 114.

        18. On June 3, 1992, Mrs. Ector filed complaint No. 197, seeking review of Judgment No. 114; following due process the Tribunal issued Judgment No. 119, of November 13, 1992, wherein it dismissed complaint No. 197.

        19. On March 8, 1993, the Complainant made another application for review, this time in connection with Judgment No. 119.

        20. In a note from the Secretary of the Tribunal, dated April 7, 1993, the Tribunal was advised of the decision of the President, in exercise of Article 21 of the Rules of Procedure of the Tribunal, to suspend the proceedings on application for review No. 199.

        21. Tribunal resolution No. 264, dated June 7, 1991, whereby proceedings in a patently unfounded petition for review can be suspended, is based on the principle of procedural economy since a petition of that nature adds to the workload of the Tribunal, takes up time that should be devoted to other cases, and creates an ill-advised expectation that some claim will be upheld (See paragraph 4 above).

        22. The facts and documents alleged by the Complainant in this Complaint No. 199 in no way fulfill the legal requirements spelled out in paragraph 5 of Chapter II, all of which must be met for a petition to review a judgment already rendered to be admitted.

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

RESOLVES:

        1. To deny the right to review that the Complainant asserts in this Complaint No. 199.

        2. To order the Complainant to pay US$1,000.00 in costs as the penalty for reasserting an unfounded claim in the form of an application for review.

Let notification be given

Washington, D.C., November 11, 1993

José Ajuricaba da Costa e Silva, Esq. / President

Enrique Rojas Franco, Esq. / Vice President

Carlos Balsa D'Agosto, Esq. / Judge

Martha Braga, Esq. / Secretary