Attack of the Tax Court
By: Geraldine Gonzalez de la Vega * and Moya Eduardo Juarez
The January 8, 2008 the Attorney General's Office (PGR) submitted to the Federal Court of Justice Fiscal and Administrative (TFJFA) a petition for annulment against the decision issued by the Federal Institute of Access to Information (IFAI) of 26 September 2007 by which reverses the PGR response to the appellant Blas Alejandro Buendia Wells . Buendía Wells filed a request for access to information to the Attorney General to disclose information relating to previous investigations initiated against Rosario Robles Berlanga. Likewise, Wells Buendía asked the PGR did a search in all areas of the unit to locate information relating to complaints and preliminary inquiries against Robles Berlanga or their relatives.
Buendía PGR Wells answered unsatisfactorily, for which the applicant appealed the IFAI response to an action for review in accordance with the procedures laid down in Articles 49 to 60 of the Federal Law of Transparency and Access to Public Government Information (LFTAIPG). IFAI believes the answer given by the Liaison Unit of Wells Buendía PGR is contrary to the provisions of the LFTAIPG and revoked in its resolution establishing a series of obligations to the PGR for the appellant. Against this reversal in terms of LFTAIPG, there is no longer any appeal for reconsideration, as Article 59 of the Act provides that l as IFAI resolutions shall be final for agencies.
At no no right of appeal against the decision of the IFAI, the PGR concluded that it would apply the legislation on administrative acts, ie Federal Administrative Procedure Act and the Federal Law of Administrative Procedure , he lodged an application for annulment with the TFJFA , p same or an order dated January 15, 2008 was dismissed. The PGR then proceeded by an action of appeal against this car, it was resolved that issued an interlocutory decision dated June 6, 2008 in revoking the order of 15 January 2008 and supported the application for annulment filed by the Attorney General against the revocation of IFAI.
interlocutory ruling in the judges deem as appropriate and founded the lawsuit filed by the Attorney General and consider that the TFJFA does have jurisdiction to hear an appeal against a decision of IFAI. This being the main argument answering the demand by the IFAI, the TFJFA dismissed and consequently avoca a review of the three concepts of challenge that the PGR is asserted in its application.
Case TFJFA considered grounds for inadmissibility unfounded and dismissed the IFAI intends to argue that this Court has no jurisdiction to hear this matter, it argues that this was the subject of a complaint appeal resolved on the occasion of the car that initially dismissed the application for annulment filed by the Attorney General, a situation that concerned the Court, prevents him from reviewing the issue of invalidity and dismissal.
The Court considers in its ruling that the resolution of the PGR IFAI used before the TFJFA is partially valid. The declared null TFJFA three obligations discovery and delivery of information by the PGR Buendía Wells, the view that are contrary to various provisions of the LFTAIPG.
is considered an unfair administrative action which is contrary to rulings of the IFAI, is based on the following reasoning:
1 .- The decisions of the IFAI can not be challenged by the obligated (PGR), as the articles themselves 26, 49, 50 and 51 of the LFTAIPG, which govern the appeal do not provide a hypothesis of origin in this sense, coupled with the numeral 59 of LFTAIPG is overwhelming in establishing that such decisions are final for agencies of the federal government, so the TFJFA can not know of such decision to be specific provision of the unchallengeable nature of the resolutions to the obligor.
2 .- The decisions of the IFAI, may be appealed only by individuals to the Federal Judicial Power, as is provided for in Article 59 the LFTAIPG. The Act also provides for a motion for reconsideration where, t nce A year after the Institute issued a decision confirming the decision of a committee, the individual concerned may apply to the same institute to reconsider the resolution. That is, as stated in the previous section, in any event the obligated (Authority) may appeal against the decision of IFAI.
3 .- The LFTAIPG, Article 51, precludes the application of Article 83 of the Federal Administrative Procedure Act (judicial review), so that the hypothesis of origin under Article 14, Section XII of the Organic Law of TFJFA not apply in that case, as apparently it is based.
4 .- TFJFA, in accordance with Article 73, paragraph XXIX-H of the Constitution, was established solely to settle disputes between the Federal Civil Service and individuals, and to impose sanctions on public servants (system is still not within functions in the absence of rules governing the procedure), which is in accordance with Articles 1 and 14 of the Organic Act and TFJFA 1, 2 and 3 of the Federal Law of Administrative, given that the only case in which an authority may serve as a plaintiff or plaintiffs in the administrative action which is when it demands the annulment of his own decision which it considered illegal, which is favorable to a particular give an undue advantage (commonly called the trial of harmfulness).
are illustrative of the comments made, two isolated from two different theses Collegiate Administrative Court of the First Circuit supporting the irrelevance of administrative action which is instituted by the Attorney General against resolution IFAI:
Ninth Period
Record: 170912
Instance: Collegiate Courts Circuit
Thesis Isolated
Source: Judicial Weekly of the Federation and its Gazette
XXVI, November 2007
Subject (s): Administrative
Thesis: A I.6o.A.49
Page: 757
APPEAL REVIEW UNDER THE FEDERAL LAW OF TRANSPARENCY AND PUBLIC ACCESS TO GOVERNMENT INFORMATION. THE CHALLENGE OF RESOLUTIONS ISSUED IN THAT APPEAL, COMPETE TO JUDICIARY FEDERATION.
Articles 49 and 50 of the Federal Law of Transparency and Access to Public Government Information provide the source of judicial review against the decisions issued by the Federal Institute of Access to Public Information, in turn, Article 51 provides that the writ of review may be in place in Article 83 of the Federal Administrative Procedure Act, then whether Article 59 of the Federal Law of Transparency and Access to Information Public Government expressly states that the decisions of the institute shall be final para las dependencias y entidades, y que los particulares podrán impugnarlas ante el Poder Judicial de la Federación, es claro que la intención del legislador fue excluir al Tribunal Federal de Justicia Fiscal y Administrativa del conocimiento de las resoluciones recaídas a los recursos de revisión, emitidas por dicho instituto, sin que con ello se violente la garantía de audiencia, pues, precisamente, atendiendo a los principios que dicha garantía consagra, es que se previó tanto el recurso de revisión, como su impugnación ante el Poder Judicial de la Federación, y basta para colmar el requisito constitucional, que se precise la existencia de un medio de defensa y ante quién se debe intentar.
Collegiate SIXTH ADMINISTRATIVE COURT OF THE FIRST CIRCUIT.
direct Amparo 78/2007. Alestra, S. de RL de CV May 30, 2007. Unanimous vote. Speaker: Rubén Rodríguez Pedrero. Secretary: Irene Núñez Ortega.
Ninth time
Record: 170991
Instance: Circuit Courts
Thesis Isolated
Source: Judicial Weekly of the Federation and its Gazette
XXVI, October 2007
Subject (s): Administrative
Thesis: A I.13o.A.142
Page: 3349
JUSTICE FEDERAL COURT OF FISCAL AND ADMINISTRATIVE. IS INCOMPETENT TO KNOW OF RELAPSE TO APPEAL DECISIONS OF REVIEW UNDER THE FEDERAL LAW OF TRANSPARENCY AND PUBLIC ACCESS TO GOVERNMENT INFORMATION.
Article 11, Section XIII, Organic Law of the Federal Court of Fiscal and Administrative Justice states that this body shall deal with the trials to be promoted against final decisions of administrative authorities to stop an administrative procedure to resolve an instance or a file in terms of the Federal Administrative Procedure Act. Moreover, the provision 49 of the Federal Law of Transparency and Access to Public Government Information provides that the applicant who has been notified by a committee decision to refuse access to information or the absence of the requested documents may lodge an application for review before the Federal Institute Access to Public Information (IFAI) or to the liaison which handled the case, and different article 51 of the Ordinance provides that the aforementioned means of defense instead of the contents shall in Article 83 of Federal Law Administrative Procedure. Consequently, the appeal referred to in the said Article 49 is different from what the Act contains an adjective, given the particular nature of matter to which he belongs and, therefore, the court is given jurisdiction to hear the resolution falls to the first action under the provisions referred. This is confirmed with the provisions of Article 59 of the Federal Law of Transparency and Access to Information Public Government, which states that decisions of that institute will be final for the agencies and entities of the federal government, adding that individuals, irrespective of whether they are requesting the information or third party may appeal to the Judicial Branch Federation, which is interpreted to be challenged through an appeal hearing, since it ensures greater security for the governed and respect the constitutional design that gives the referred to the last word on interpreting the laws, above, in order to quickly and avoid burdensome procedures to dilate yet more to obtain the requested information in cases, as appropriate.
THIRTEENTH Collegiate ADMINISTRATIVE COURT OF THE FIRST CIRCUIT.
direct Amparo 8 / 2007. Gas Natural Mexico, SA de CV June 29, 2007. Unanimous vote. Speaker: Rolando González Licona. Secretary: Ana Luisa Muñoz Rojas.
IFAI have available to the application for review under Article 63 of Federal Law
* While preparing this paper,
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