Background
The Agência Nacional de Saúde Suplementar (ANS), Brazil’s federal health-insurance regulator, initiated a tax enforcement action (execução fiscal) against Unimed Fortaleza, a medical cooperative, to collect an administrative fine. Unimed responded with an exceção de pré-executividade — a preliminary objection available in enforcement proceedings — demonstrating that the very same debt was already the subject of a separate, ongoing enforcement action filed by the ANS itself, making the second action duplicative. The ANS acknowledged the error, asked the court to dismiss the case, and invoked Article 19, §1°, I of Law 10,522/2002 to avoid being ordered to pay Unimed’s attorney’s fees. The trial court dismissed the action and declined to award fees. Unimed appealed, arguing it was entitled to attorney’s fees because the duplicative-filing scenario does not appear among the seven specific situations listed in Article 19’s main provision.
The Federal Regional Court of the Fifth Region (TRF-5) denied Unimed’s appeal, holding that the list of situations in Article 19 should not be read as exhaustive. In the TRF-5’s reasoning, treating the list as closed would give the government no incentive to acknowledge meritorious claims or abandon improper suits in circumstances beyond those seven categories — an outcome contrary to the statute’s evident purpose of discouraging unnecessary litigation. Unimed then filed a recurso especial (special appeal on a question of federal law) to the STJ, contending that the lower court improperly gave the exemption provision an expansive reading.
The Vice-Presidency of the TRF-5 itself flagged the appeal as a candidate for the STJ’s repetitive-appeal mechanism, noting that the same interpretive dispute was recurring in courts across Brazil. The federal prosecutors (Ministério Público Federal) agreed that the issue warranted binding resolution. Internal STJ research confirmed a genuine split: the Second Panel had recently held the Article 19 list to be exhaustive, while the First Panel had reached the opposite conclusion.
The Court’s Holding
Acting unanimously, the STJ’s Primeira Seção (the combined civil and tax panels that sits en banc on matters of national importance) formally designated REsp 2239244, together with REsp 2,239,250/SE, as the lead cases for Repetitive Controversy No. 818/STJ. This procedural ruling does not resolve the merits; rather, it locks in the precise legal question and triggers the binding-precedent machinery of Article 1,036 et seq. of Brazil’s Code of Civil Procedure (CPC). The court defined the contested issue as: “To determine whether the exemption from an award of attorney’s fees against a federal public entity, as provided in Article 19, §1°, I of Law 10,522 of 2002, is limited to the situations set out in subsections I through VII of the article’s main provision, or whether that list should be regarded as non-exhaustive.”
In the same ruling, the Primeira Seção ordered the nationwide suspension of all pending second-instance proceedings in which the same question is at issue, pursuant to Article 1,037, II of the CPC. The court also directed that copies of the affectation decision be sent to all STJ ministers and to the presidents of the Federal Regional Courts, and gave the federal prosecutors fifteen days to file a formal opinion before the merits are argued.
Reporting Justice Sérgio Kukina noted one collateral complexity: the constitutionality of the very provision at stake — Article 21 of Law 12,844/2013, which inserted §1°, I into Article 19 of Law 10,522/2002 — is the subject of ADI 5,405/DF pending before the Supremo Tribunal Federal (STF). That challenge, brought by the Brazilian Bar Association, was last debated at an STF plenary session on 25 August 2025 but remains unresolved. Because the STJ question is one of pure statutory interpretation (infra-constitutional), the court concluded there was no present obstacle to proceeding with the repetitive-appeal process while the constitutional litigation continues at the STF.
Key Takeaways
- The STJ has formally acknowledged a circuit split on whether the attorney’s-fees exemption in Article 19, §1°, I of Law 10,522/2002 operates as a closed list tied only to subsections I–VII, or as an open-ended rule that applies whenever the federal entity properly acknowledges a meritorious claim.
- All second-instance proceedings nationwide in which this question is pending are now suspended until the STJ issues a binding ruling under the repetitive-appeal procedure; the merits decision, when handed down, will be binding on all lower courts.
- A parallel constitutional challenge at the STF (ADI 5,405/DF) targets the same statutory provision; the STJ is proceeding on the statutory question, but a future STF ruling on constitutionality could supersede whatever interpretation the STJ adopts.
Why It Matters
The practical stakes are significant for any party that successfully challenges a federal enforcement action. If the exemption is exhaustive, private litigants who defeat an ANS, tax authority, or other federal agency outside the seven enumerated scenarios can recover attorney’s fees from the government — the ordinary rule under Article 85 of the CPC. If the list is non-exhaustive, the federal government can acknowledge it was wrong and walk away from litigation without a fee award, regardless of the reason for the initial suit. Given the volume of federal enforcement actions filed annually across Brazil, the financial and behavioral consequences of the STJ’s forthcoming ruling will be felt by thousands of pending cases.
The decision also illustrates Brazil’s structured use of the repetitive-appeal mechanism as a docket-management and law-harmonization tool. By suspending all related second-instance cases and designating two lead cases for a single, authoritative ruling, the STJ aims to eliminate conflicting outcomes across the five Federal Regional Courts while providing the private bar and the federal legal offices with a clear, enforceable standard. Practitioners handling federal enforcement matters — including tax, regulatory, and administrative proceedings — should monitor Repetitive Controversy No. 818/STJ closely.