## The International Monetary Fund Administrative Tribunal: Its First Six Years ## Source details **Canonical URL:** [The International Monetary Fund Administrative Tribunal: Its First Six Years](https://www.imf.org/-/media/files/imfat/imfat-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/imfat-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/imfat-1.pdf.json) --- ### Preface, establishment, and composition - Volume contains Judgments and published Orders of the International Monetary Fund Administrative Tribunal ("IMFAT" or "Tribunal") rendered from inception through 1999 and republishes in an Appendix the Tribunal's Statute, Rules of Procedure, and the Report of the International Monetary Fund's Executive Board on establishment of the Tribunal. - Key dates and procedural milestones: - Statute entered into force as of October 15, 1992. - Tribunal formally established January 13, 1994 when the Managing Director notified staff of appointment of members. - Rules of Procedure adopted February 18, 1994; amended August 31, 1994. - The Tribunal held its first judicial session in Washington, D.C., August 29–31, 1994. - Composition reported for 2000–2001 (examples of members and roles): - Judge Stephen M. Schwebel (United States), President; - Associate Judge Michel Gentot (France); - Associate Judge Nisuke Ando (Japan); - Alternate Judge Agustín Gordillo (Argentina); - Alternate Judge Georges Abi‑Saab (Egypt). - Casework volume through 1999: - The Tribunal rendered eight Judgments and four published Orders in its six-year history through 1999. - Registrar and publication note: - Washington, D. C. June 2000 — Celia Goldman, Registrar. ### Jurisdiction — scope, temporal limits, and definitions - Statutory competence (Article II, Section 1): - a. applications by a member of the staff challenging the legality of an administrative act adversely affecting him; or - b. applications by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant. - Definitions and limits: - "Administrative act" means "any individual or regulatory decision taken in the administration of the staff of the Fund" (Article II, Section 2). - "Regulatory decision" includes General Administrative Orders and the Staff Retirement Plan but excludes resolutions of the Board of Governors. - "Member of the staff" includes any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff; also (ii) assistants to Executive Directors and (iii) successors in interest to deceased staff (Article II, Sections 2.c.(i)–(iii)). - Temporal limitation (Article XX, Section 1): - Tribunal is not competent to pass judgment on any application challenging the legality of an administrative act taken before October 15, 1992, even if review channels were exhausted only after that date. - Practical holdings applying temporal limits: - IMFAT dismissed applications where the dispositive administrative act occurred pre-October 15, 1992, even when later arithmetic or disbursement steps occurred post-1992 (e.g., Judgment No. 1994-1 concerning Mr. "X"; Judgment No. 1995-1 concerning Ms. "S"). ### Jurisdiction ratione personae and contractual employees - Statute confines ratione personae to staff members and certain beneficiaries under Fund plans. - Fixed-term appointees are expressly included as "members of the staff." - Contractual employees: - Fund guidelines treat "contractual employees" as a separate category with binding arbitration for disputes; contractual appointments are for roles where skills are short-term, evolving, or continuity is not critical. - IMFAT held that persons whose letters of appointment expressly state "You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter" fall outside Tribunal jurisdiction (IMFAT Judgment No. 1999-1, Mr. "A"). - In Mr. "A" the Tribunal granted the Fund's Motion for Summary Dismissal and concluded the Fund’s decision to enter into contracts rather than staff appointments is not a "decision taken in the administration of the staff" for Article II purposes. - Precedent on borderline situations: - In D'Aoust (JUDGMENT No. 1996-1), an applicant who accepted an offer and became a member of staff was within jurisdiction even though the contested act (offer) was made prior to staff status because the offer and acceptance affected him thereafter as a staff member. ### Jurisdiction ratione materiae — individual vs regulatory decisions; acts of staff bodies - Distinction central to competence: - Individual decisions: decisions applying rules to a particular person (e.g., initial grade and salary determinations). - Regulatory decisions: rules concerning terms and conditions of staff employment (must be a decision by an authorized organ, published, with a determinable effective date, and reasonable notice). - Key holdings: - Tribunal refused to treat an unpublished administrative practice (e.g., ten-year truncation of prior experience for non-economists) as a "regulatory decision" where no authorized decision or publication supported it (D'Aoust, Judgment No. 1996-1). - The Tribunal recognized that administrative practice can give rise to legal rights when promulgated by authorized organs and meeting the D'Aoust criteria (see Ms. "B", IMFAT Judgment No. 1997-2 — Kennedy‑Swain memorandum treated as lawful personnel policy). - Acts of staff bodies (Staff Association Committee — "SAC"): - Tribunal held SAC acts are primarily representative of staff and are not "administrative acts" taken in administration of the staff; the Fund is not answerable to the Tribunal for acts of the SAC (Mr. "V", IMFAT Judgment No. 1999-2). ### Exhaustion of remedies, Grievance Committee relationship, and Rule XII summary dismissal - Statutory exhaustion (Article V) — preserved text of triggering events: - Administrative review deemed exhausted when: - a. three months have elapsed since a recommendation on the matter has been made to the Managing Director and the applicant has not received a decision stating that the relief he requested would be granted; - b. a decision denying the relief requested has been notified to the applicant; or - c. two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - Tribunal practice: - Where channels exist (e.g., Grievance Committee under GAO No. 31), exhaustion of those channels is statutorily required before Tribunal invocation (Ms. "Y", Judgment No. 1998-1 — Fund Motion for Summary Dismissal granted for failure to exhaust). - The Tribunal will reconsider admissibility if the Grievance Committee, if seized, decides it lacks jurisdiction (Ms. "Y", para. 43). - Rule XII permits summary dismissal where an application is "clearly inadmissible"; the Fund may file a motion within thirty days, and the Applicant has thirty days to object; filing suspends answering period. - De novo review and limits: - Tribunal is not bound by the Grievance Committee's findings; it makes independent findings of fact and law (D'Aoust; Mr. "V", para. 129). - The Tribunal does not act as a mere appellate body and will not substitute its judgment for managerial discretion unless arbitrariness, caprice, discrimination, improper motive, error of law or fact, or violation of fair and reasonable procedures is shown. ### Remedies, compensation, and costs (Article XIV and XV) — thresholds and practice - Statutory remedial framework: - If an individual decision challenge is well-founded, Tribunal may prescribe rescission and measures to correct effects, including payment of money. - Where non-monetary remedies are ordered, Tribunal may fix compensation not to exceed three hundred percent (300%) of the current or last annual salary, except in exceptional justified cases. - If regulatory decision is annulled, individual decisions taken pursuant to it are null and void. - Costs allocation: - If application is well-founded in whole or in part, Tribunal may order reasonable costs incurred by applicant, including counsel fees, to be borne by the Fund, considering nature/complexity/prevailing rates. - Tribunal awarded compensable legal costs at $15,000 in Order No. 1998-1 assessing costs pursuant to Judgment No. 1997-1 (Ms. "C") — decision grounded on partial success and statutory factors. - Sanctions against frivolous claims (Article XV): - Tribunal may order applicant to compensate the Fund if the application was manifestly without foundation or intended to delay/harass. - Tribunal clarified asymmetry between Article XIV (favoring applicants to ensure access) and Article XV (penalizing frivolous claims) and rejected Fund requests for costs under Article XV where prerequisites not alleged (Mr. "V", Judgment No. 1999-2). ### Selected case findings and exemplars (factual holdings and remedies) - Judgment No. 1994-1 (Mr. "X"; August 31, 1994): - Dispositive administrative act identified as 1986 decision reversing pension contributions and treating pensionable service as terminating September 30, 1985. - Tribunal found 1993 pension calculations were "purely arithmetical acts" implementing the 1986 determination and dismissed Application under Article XX. - Judgment No. 1995-1 (Ms. "S"; May 5, 1995): - Applicant sought exceptional SRP credit for contractual service; Tribunal held it lacked jurisdiction to challenge pre-October 15, 1992 elements and dismissed Application. - Judgment No. 1996-1 (M. D'Aoust; April 2, 1996): - Individual decision on initial grade and salary: Application rejected. - Alleged regulatory practice (ten-year truncation of prior experience for non-economists) held not to be a regulatory decision because it was unpublished and not adopted by an authorized organ; Tribunal lacked jurisdiction to annul the practice but could assess individual application. - Director of Administration later increased salary by $1,000 p.a. and promoted to A13 as remedial adjustments; Tribunal concluded exercise of discretion valid given record. - Key figures: initial salary complained $65,800; applicant sought adjustment to minimum $76,000; remedial increase $1,000 p.a.; truncation cap at ten years. - Judgment No. 1997-1 (Ms. "C"; August 22, 1997): - Applicant alleged non-conversion of fixed-term appointment to regular staff was retaliation for a sexual harassment complaint. - Tribunal found no reprisal but identified procedural irregularities (failure to inform precise reasons for nonconversion and failure to afford opportunity to rebut critical allegations). - Remedy: compensation equivalent to six months of salary; award of reasonable legal costs subject to Article XIV process; assessment of compensable legal costs later set at $15,000 (Order No. 1998-1). - Judgment No. 1997-2 (Ms. "B"; December 23, 1997): - Challenge to "underfilling" and validity of the Kennedy‑Swain Memorandum (dated September 7, 1995). - Tribunal held the Memorandum constituted a lawful personnel policy: chiefs of Compensation Policy Division and Staff Development Division had sufficient authority; memorandum date denotes effective date where none specified; limited circulation to SPMs, Administrative Officers, and Staff Association did not invalidate it. - Applicant's requests for retroactive A7/A8 relief and extensive damages (including 300 percent (300%) of gross salary and $200,000) were rejected; Tribunal sustained underfilling policy and dismissed Application. - Relevant figures preserved: merit increase 5.9 percent; salary after 1995 merit $38,550; requested promotion increment five-percent (5%); alleged exemplary damages $200,000. - Judgment No. 1998-1 (Ms. "Y"; December 18, 1998): - Applicant used a one-time ad hoc discrimination review; Tribunal granted Fund's Motion for Summary Dismissal for failure to exhaust Grievance Committee remedies where available but retained flexibility to reconsider if Grievance Committee, if seized, finds no jurisdiction. - Judgment No. 1999-1 (Mr. "A"; August 12, 1999): - Applicant a former contractual employee whose letter stated he "will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter." - Tribunal granted Fund's Motion for Summary Dismissal, finding no jurisdiction ratione personae or ratione materiae; Tribunal held it need not examine merits to decide jurisdiction in that case. - Judgment No. 1999-2 (Mr. "V"; August 13, 1999): - Retirement Agreement (May 9, 1996) provided sealed originals for 1992 and 1994 APRs, destruction of copies, removal of numerical ratings from the personnel data base, and confidentiality. - Fund prepared a 1996 Separation Benefits Fund (SBF) Report marked "STRICTLY CONFIDENTIAL" listing reasons for separations; Applicant's entry listed reason: "Performance. Unable to produce work that met department's standards. Retired." - Tribunal concluded Fund did not breach the Retirement Agreement or Fund rules in preparing and circulating the 1996 SBF Report to a limited number of addressees and that Applicant failed to establish a causal nexus between the Report and any inability to obtain employment; Tribunal rejected claims imputing SAC acts to the Fund and denied Fund request for costs under Article XV. ### Procedural rules, evidence production, and confidentiality - Evidence production (Article X): - Tribunal may require production of documents held by the Fund; Managing Director may withhold documents if introduction might hinder Fund operation because of secret or confidential nature; such determination is binding on the Tribunal. - Applicant's allegations concerning withheld documents are deemed demonstrated in absence of probative evidence to the contrary. - Rules of Procedure highlights: - Rule XII provides motion for summary dismissal procedure: Fund may file within thirty days; Applicant may object within thirty days; filing suspends answering period. - Rule VII requires Applicants to attach documents cited in the Application, including any Grievance Committee report and recommendation. - Rule XXI allows President to modify time limits in exceptional cases. ### Overarching principles, institutional limits, and future expectations - IMFAT as a tribunal of limited jurisdiction: - Tribunal repeatedly affirmed it has no powers beyond those conferred under its Statute and that it must "interpret but not expand" its statutory authority (Article III; Judgment No. 1999-1). - Deference to managerial discretion: - Tribunal will not substitute its judgment for that of Fund organs; discretionary managerial decisions are reviewable only for arbitrariness, caprice, discrimination, improper motive, error of law or fact, or breach of fair procedures. - Enforcement of negotiated settlements: - Tribunal enforces settlement and release agreements where individualized bargaining and consideration are shown (Mr. "V" decision). - Costs and access: - Tribunal applied Article XIV to award reasonable costs to partially successful applicants to preserve access to the Tribunal; Article XV reserved for manifestly unfounded or abusive claims and has a higher threshold. - Anticipated jurisprudential development: - It is anticipated IMFAT's body of jurisprudence will grow, refining principles on jurisdictional boundaries, notice and publication requirements for regulatory decisions, exhaustion of remedies, treatment of long-term contractual service, and enforcement of confidentiality and settlement terms. *Source: "The International Monetary Fund Administrative Tribunal: Its First Six Years," Preface and introductory chapter as published in IMF Administrative Tribunal Reports, Vol. I (Judgments and published Orders rendered through 1999).* ### PREFACE vii ### The International Monetary Fund Administrative Tribunal: Its First Six Years ### Preface — volume content and publication - The volume contains the Judgments and published Orders of the International Monetary Fund Administrative Tribunal ("IMFAT" or "Tribunal") rendered from its inception through 1999. - The volume includes an introductory chapter titled "The International Monetary Fund Administrative Tribunal: Its First Six Years." - The volume republishes in an Appendix the Tribunal's Statute, Rules of Procedure, and the Report of the International Monetary Fund's Executive Board on the establishment of the Tribunal. - Washington, D. C. June 2000 — Celia Goldman, Registrar. ### Background and establishment - The Executive Board of the International Monetary Fund ("IMF" or "Fund") began considering establishment of an administrative tribunal in 1986, culminating in a draft Statute and a Report by the Executive Board to the Board of Governors recommending adoption. - The Statute of the International Monetary Fund Administrative Tribunal entered into force as of October 15, 1992. - The Tribunal was formally established January 13, 1994 when, pursuant to the Statute, the Managing Director notified the staff of the Fund of the appointment of the Tribunal's members. - The Tribunal adopted its Rules of Procedure on February 18, 1994; those Rules were amended on August 31, 1994. ### Composition and qualifications - The Tribunal is composed of a President, two associate members and two alternates, each appointed for two-year terms and eligible for reappointment (Article VII (1)(a) and (b), (2); Article VII (1)(c)). - All members must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence (Article VII (1)(c)). - The composition reported for 2000-2001 included: - Judge Stephen M. Schwebel (United States), President (Former President, International Court of Justice); - Associate Judge Michel Gentot (France) (Member, Conseil d'Etat, France; President, International Labour Organisation Administrative Tribunal); - Associate Judge Nisuke Ando (Japan) (Professor of International Law, Faculty of Law, Doshisha University, Kyoto); - Alternate Judge Agustfn Gordillo (Argentina) (Professor of Administrative Law and Professor of Human Rights, University of Buenos Aires School of Law); - Alternate Judge Georges Abi-Saab (Egypt) (Professor of International Law, Graduate Institute of International Studies, Geneva). ### Casework volume (first six years) - In its six-year history through 1999, the International Monetary Fund Administrative Tribunal rendered eight Judgments and four published Orders. ### Jurisdiction — general scope - Article II (1) of the Statute grants competence to the Tribunal: - a. "by a member of the staff challenging the legality of an administrative act adversely affecting him"; or - b. "by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant." - An "administrative act" is defined as "any individual or regulatory decision taken in the administration of the staff of the Fund" (Article II (2)(a)). - Article XX (1) excludes from the Tribunal's jurisdiction challenges to administrative acts taken before October 15, 1992, even if channels of administrative review concerning that act were exhausted only after that date. ### Jurisdiction ratione temporis — key interpretations - In IMFAT Judgment No. 1994-1 (Mr. "X", Applicant v. International Monetary Fund, Respondent; August 31, 1994) and IMFAT Judgment No. 1995-1 (Ms. "S", Applicant v. International Monetary Fund, Respondent; May 5, 1995), the Tribunal granted the Fund's motions for summary dismissal on the basis of the time-bar of Article XX. - The Tribunal held that subsequent arithmetic or disbursement acts that merely implement an earlier determination do not transform a pre-October 15, 1992 decision into a post-Statute "administrative act" for purposes of jurisdiction: - The 1986 determination of the period of Mr. "X"'s pensionable service was the "administrative act"; the calculation of pension in 1993 was a "purely arithmetical act governed by the decision of 1986." - Continued effects of a pre-Statute act after October 15, 1992 do not extend the Tribunal's jurisdiction to the original act. - In Ms. "S", the Tribunal held that refusals by the Plan's Administration Committee to amend or exceptionally apply a pre-existing plan provision are "decisions" but cannot confer jurisdiction where the challenged rule itself pre-dated October 15, 1992. ### Jurisdiction ratione personae — who may apply - Article II confines IMFAT jurisdiction ratione personae to "member[s] of the staff" or "enrollee[s] in, or beneficiar[ies] under, any retirement or other benefit plan maintained by the Fund as employer." - Before IMFAT Judgment No. 1999-1 (Mr. "A", Applicant v. International Monetary Fund, Respondent; August 12, 1999), all cases had been filed by staff members or former staff members. - IMFAT Judgment No. 1999-1 addressed the question of claims brought by a former "contractual employee" of the Fund (case specifics continue beyond the supplied excerpt). ### Procedural features - Rule XII of the IMFAT Rules of Procedure provides a procedure for summary dismissal of an inadmissible application: - The Tribunal may decide summarily to dismiss an application if it is clearly inadmissible. - The Fund may file a motion for summary dismissal within thirty days of receipt of the application; filing suspends the period for answering the application until the motion is acted on. - The Applicant may file a written objection to the motion within thirty days of transmission of the motion. - There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests. *Source: "The International Monetary Fund Administrative Tribunal: Its First Six Years," Preface and introductory chapter as published in IMF Administrative Tribunal Reports, Vol. I (Judgments and published Orders rendered through 1999).* ### 1. The Tribunal shall be competent to pass judgment upon any application: ### 1. The Tribunal shall be competent to pass judgment upon any application: ### Jurisdiction ratione personae - The IMF Administrative Tribunal (IMFAT) is competent to hear: - applications by a member of the staff challenging the legality of an administrative act adversely affecting him; or - applications by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant. - Article II defines "member of the staff" as "any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff[.]" - Article II (2)(c) additionally includes: - (ii) any current or former assistant to an Executive Director; and - (iii) any successor in interest to a deceased member of the staff as defined in (i) or (ii) above to the extent that he is entitled to assert a right of such staff member against the Fund[.] ### Contractual employees versus staff members - Under Fund guidelines, "contractual employees" constitute a separate category from "staff members." - Contractual appointments are normally used to fill positions: - in which the Fund has little or no expertise; - for which the skills required are likely to change dramatically over time; - where continuity within the staff performing the tasks is not critical; or - in which services are needed for only a relatively short period of time. - Recruitment and compensation practices applicable to contractual employees differ from those governing staff members. - Employment disputes involving contractual employees are to be resolved by binding arbitration; staff members have access to the Grievance procedure and the Administrative Tribunal. - "Fixed-term" appointees are considered members of the staff and are expressly included within the Tribunal's jurisdiction. ### Case law and application of statutory limits (Mr. "A" and D'Aoust) - In Mr. "A", the applicant's letter of appointment expressly stated: "You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter." - The applicant in Mr. "A" argued, relying on general principles of international administrative law and jurisprudence of other international tribunals, that he was a "de facto" member of the staff entitled to bring a remedy before the IMFAT. - The IMFAT examined comparative jurisprudence but decided admissibility within the strictures of its own Statute and the factual wording of the applicant's letter of appointment. - The Tribunal concluded that exclusion of contractual employees from the Tribunal's jurisdiction was explicit and intentional in the Statute and its legislative history, reflecting recognition that a separate dispute settlement mechanism exists for contractual employees. - The Tribunal expressed "disquiet and concern" that the practice examined in Mr. "A" may leave some Fund employees without judicial recourse, but noted that it is for the policy-making organs of the Fund, rather than the Tribunal, to provide appropriate avenues for resolution of such disputes. - In D'Aoust (IMFAT Judgment No. 1996-1 (April 2, 1996)), the applicant was a member of the staff at the time he filed his application but had not yet become a staff member at the time of the challenged administrative act (the offer of a position at a given grade and salary). The Tribunal concluded: "since the offer and acceptance of a particular grade and salary thereupon and thereafter affected him as a member of the staff, the Tribunal is competent to adjudge his case." ### Jurisdiction ratione materiae (subject-matter) - Jurisdiction ratione materiae is predicated on the existence of an "administrative act." - "Administrative act" encompasses both "individual" and "regulatory" decisions taken in the administration of the staff of the Fund. - "Regulatory decision" is defined as "any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund[.]" - The Tribunal held in Mr. "A" that the Fund's decision to enter into a contract or series of contracts with an individual to serve as a contractual employee, rather than as a member of the staff, is not a "decision taken in the administration of the staff" as required for jurisdiction under Article II (2)(a), and therefore lies outside the IMFAT's jurisdiction ratione materiae. - The Tribunal distinguished D'Aoust, noting that decisions preliminary to an applicant's becoming a staff member may be within the Tribunal's competence ratione materiae if the challenged act affects the individual in his capacity as a member of the staff; by contrast, Mr. "A" never became a member of the Fund's staff. ### Principle: IMFAT as a tribunal of limited jurisdiction - The IMFAT affirmed that it is a tribunal of limited jurisdiction and does not have powers beyond those conferred under its Statute (Article III: "The Tribunal shall not have any powers beyond those conferred under this Statute."). - Article IV provides that "[a]ny issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute." - The third sentence of Article III reserves to the organs of the Fund their powers under the Articles of Agreement, including discretionary authority in taking individual or regulatory decisions, such as establishing or amending the terms and conditions of employment with the Fund. - Article XIX provides that the Statute "may be amended only by the Board of Governors of the Fund." - The Tribunal stated its task is to "interpret but not expand" its statutory authority in deciding upon its jurisdiction over a particular case. *IMF Administrative Tribunal Reports, Vol. I.* ### 1. The Tribunal shall be competent to pass judgment upon any application: ### imfat-1 - 1. The Tribunal shall be competent to pass judgment upon any application: ### Jurisdiction ratione materiae: scope and limits - The Tribunal is competent under Article II (2) (a) to adjudicate applications "by a member of the staff challenging the legality of an administrative act adversely affecting him." - Distinction between "individual decisions" and "regulatory decisions" is central to jurisdictional competence: - The Tribunal upheld the individual decision by which a methodology for truncating recognition for prior experience was applied to Mr. D' Aoust, but found no "regulatory decision" on which to rule in that case. - For a practice to be a "regulatory decision" there must be a "decision" taken by an organ authorized to take it. Evidence showed the methodology at issue was an unpublished practice known to and employed by a small number of Fund officials and "distilled in no rule, General Administrative Order, handbook or handout, statement on conditions of employment, contract or other published official paper of the Fund." - Consequently the Tribunal concluded it lacked jurisdictional competence to adjudge the legality of that practice as a "regulatory decision." - The Tribunal emphasized the need for "reasonable notice" for actions or decisions so employees are clearly informed of working conditions; it observed that a practice affecting determination of salary levels that is largely unknown may require consideration by the Managing Director. (D'Aoust, para. 36–37, pp. 70–72.) ### Jurisdiction and acts of staff bodies (Staff Association Committee — "SAC") - In Mr. "V", Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1999-2 (August 13, 1999), the Applicant challenged the Fund's inclusion in a confidential internal report of information relating to his separation from service, alleging violation of a settlement and release agreement and Fund rules. - Issues considered: - Whether circulation of the confidential report to the Chairman of the Staff Association Committee ("SAC") and subsequent availability of the report in the SAC offices could make the Fund answerable before the Tribunal for acts of the SAC. - Whether an act of the SAC could be "taken in the administration of the staff of the Fund" so as to qualify as an "administrative act" under Article II (2) (a). - Findings: - The SAC serves primarily as a representative of staff (vs. management) interests; making the report available in furtherance of SAC goals suggested acts of the SAC were not acts of the Fund. - The alleged acts were not typical "administrative acts" as described in the Report of the Executive Board: "This definition [of 'administrative act'] is intended to encompass all decisions affecting the terms and conditions of employment at the Fund..." - Management's transmission of the report to the SAC Chairman did not blur distinction between Fund action and SAC acts or convert SAC acts into Fund acts. - Therefore, the Tribunal could not entertain as part of the Applicant's complaint consequences of the Fund's circulation of the report that consisted of handling by the SAC after receipt; the SAC acts were not "taken in the administration of the staff of the Fund," and thus fell outside the Tribunal's subject matter jurisdiction. (Mr. "V", paras. 111–114, pp. 200–202.) ### Exhaustion of remedies and relationship to the Fund's Grievance Committee - The Tribunal's admissibility review is governed both by statutory jurisdictional provisions and by the exhaustion of remedies requirement. - Rationale: - A basic prerequisite for adjudication is exhaustion by the aggrieved employee of all internal administrative remedies prior to invoking the Tribunal, consistent with the principle that the Tribunal is a forum of last resort and administration should have had full opportunity to assess complaints. (Report of the Executive Board, p. 23.) - Distinctions: - Most "individual decisions" challenged in the Tribunal are first considered by the Fund's Grievance Committee; "regulatory decisions" are not within the Grievance Committee's jurisdiction and may be brought directly to the Tribunal. (D'Aoust, para. 3, p. 57.) - "Individual decisions" under the Staff Retirement Plan that fall within competence of the Administration or Pension Committees are excluded from the Grievance Committee's jurisdiction (General Administrative Order No. 31, Rev. 3, Section 4.03). In 1999, Rules of Procedure of the Administration Committee of the Staff Retirement Plan were adopted clarifying exhaustion requirements for such decisions. (IMF Staff Bulletin 99/17 and attachment.) ### Article V: statutory exhaustion requirement (textual elements preserved) - Article V provides that when the Fund has established channels of administrative review, an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review. - For purposes of the Statute, where available channels include a procedure for consideration of complaints and grievances of individual staff members: 1. Administrative review shall be deemed exhausted when: - a. three months have elapsed since a recommendation on the matter has been made to the Managing Director and the applicant has not received a decision stating that the relief he requested would be granted; - b. a decision denying the relief requested has been notified to the applicant; or - c. two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - Where available channels do not include the procedure described in Section 2, a channel of administrative review shall be deemed exhausted when: 3. a. three months have elapsed since the request for review was made and no decision stating that the relief requested would be granted has been notified to the applicant; - b. a decision denying the relief requested has been notified to the applicant; or - c. two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. ### Application in practice: Ms. "Y" (exhaustion dilemma) - In Ms. "Y", Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1998-1 (December 18, 1998), the Tribunal considered a Fund motion for summary dismissal on grounds the Applicant failed to fulfill Article V exhaustion requirements. - Context: - Ms. "Y" claimed career effects from discrimination based on gender, age and profession and submitted her case to an ad hoc discrimination review procedure instituted by the Fund on a one-time basis after a report by the Fund's Consultant on Discrimination. - The legal question was whether invoking the ad hoc discrimination review procedure, instead of submitting the complaint to the Fund's Grievance Committee, satisfied the statutory prior review requirements of Article V. *Source: IMF Administrative Tribunal: Its First Six Years; IMF Administrative Tribunal Reports, Vol. I.* ### 4. For purposes of this Statute, all channels of administrative review shall be ### 4. For purposes of this Statute, all channels of administrative review shall be ### Exhaustion of administrative review and Tribunal jurisdiction - The IMF Administrative Tribunal (IMFAT) concluded that "all channels of administrative review shall be deemed to have been exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal." - In Ms. "Y", the Tribunal found the memoranda establishing an ad hoc discrimination review "lacked clarity as to the relationship between that procedure and the Fund's established Grievance procedure." The Tribunal termed that lack of clarity "the distinguishing factor in this case." (Afs. "Y", para. 42, pp. 132-133.) - The Tribunal resolved the ambiguity in favor of requiring Grievance Committee review where available, holding that: - ".. exhaustion of the remedies provided by the Grievance Committee, where they exist, is statutorily required and that the memoranda in question do not exclude that requirement." (Ms. "Y", para. 42, pp. 132-133.) - The Tribunal preserved flexibility for "singular circumstances" and held that: - "... in the event that the Grievance Committee, if seized, should decide that it does not have jurisdiction over Applicant's claim, the Administrative Tribunal will reconsider the admissibility of that claim on the basis of the Application now before it." (Afs. "Y", para. 43, p. 133.) ### Relationship between the IMFAT and the Grievance Committee - The IMFAT affirmed the statutory requirement of Grievance Committee review of individual complaints where that channel is available and noted the benefit to the Tribunal of having the detailed factual and legal record produced by the Grievance Committee. - The IMFAT does not serve as an "appellate court" vis-a-vis the Grievance Committee: - In D'Aoust, the Tribunal refused to review the Grievance Committee's recommendation itself because it is not an "administrative act" under Article II of the Statute; the Managing Director's final administrative decision is the act reviewable by the Tribunal. (D'Aoust, para. 17, p. 64.) - The Tribunal "makes findings of fact as well as holdings of law" and is not limited as an appellate body. (D'Aoust, para. 17, p. 64.) - Rule VII (3) requires Applicants to attach documents cited in the Application, including "a copy of any report and recommendation of the Grievance Committee in the matter," which in practice has led to submission of transcripts of Grievance Committee proceedings. (Rule VII (3).) ### Tribunal's factfinding standard and de novo review - The IMFAT is not bound by the Grievance Committee's findings and decides cases de novo: - In Mr. "V", the Tribunal reiterated it "makes its own independent findings of fact and holdings of law, [and] is not bound by the reasoning or recommendation of the Grievance Committee." (Mr. "V", para. 129, p. 206.) ### Limits on overturning discretionary managerial decisions - The Tribunal recognized that it may not substitute its judgment for that of the Fund's competent organs. Discretionary decisions may be overturned only if shown to be: - arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. (Report of the Executive Board, pp. 13, 17, 19.) ### Challenges to grade and salary — D'Aoust - The IMFAT upheld the right of staff members to challenge the legality of initial determinations of grade and salary: - Acceptance of an offer weighs against challenge but is only a presumption; a staff member can still argue misrepresentation of facts or irregularity in appointment. (D'Aoust, para. 12, p. 61.) - Classification and grading are exercises of discretionary authority, subject to review only for procedural irregularity. (D'Aoust, para. 23, p. 65.) - The Tribunal found that alleged errors and irregularities in Mr. D'Aoust's appointment could not have affected his decision to accept the post; the initial salary was renegotiated to his advantage. (D'Aoust, para. 24, p. 66.) - The Tribunal held that applying the non-economist matrix to Mr. D'Aoust's salary determination, given that "economics is at the heart of the mission of the Fund," did not give rise to a cause of action on the ground of inequality of treatment. (D'Aoust, para. 29, p. 67.) - The Tribunal concluded the Fund's exercise of managerial discretion in setting Mr. D'Aoust's initial grade and salary was not invalidated by the procedures followed, including the ten-year truncation of prior experience. (D'Aoust, para. 30, p. 68.) - The Tribunal lacked jurisdiction to consider Applicant's challenge to the legality of the methodology as a "regulatory decision." (D'Aoust, para. 35, p. 70.) ### Validity of personnel policy and "underfilling" — Ms. "B" (IMFAT Judgment No. 1997-2, December 23, 1997) - The Tribunal treated the contested Kennedy‑Swain memorandum as a lawful personnel policy rather than merely practice, noting that administrative practice can give rise to legal rights and obligations. (Ms. "B", para. 37, p. 98.) - The IMFAT applied the D'Aoust criteria for a valid "regulatory decision": decision by an authorized organ, laid down in a published official document of the Fund, with a determinable effective date, of which staff had reasonable notice. (Ms. "B", para. 39, p. 98.) - Findings: - The chiefs of applicable Fund divisions had sufficient authority to codify the practice and issue the memorandum. (Ms. "B", para. 45, p. 101.) - The memorandum was a lawful form for issuance of personnel policy and its date sufficed as an effective date. (Ms. "B", paras. 49, 52, pp. 103.) - Limited circulation of the memorandum did not invalidate it because Staff Bulletin No. 89/28 had been circulated to all staff and contemplated periodic adjustments; the memorandum codified an interim adjustment. (Ms. "B", para. 60, p. 107.) - Procedural irregularities or errors may be irrelevant where they have no adverse effect on the complainant; in Ms. "B" the underfilling policy had the positive effect of earlier promotion for the Applicant. (Ms. "B", paras. 61, 63-64, pp. 108, 109-110.) - The Fund correctly applied its rules in the individual decision to underfill the position; the vacancy announcement could properly refine qualifications in the Fund's Job Standards. (Ms. "B", paras. 69-70, 77, pp. 111-114.) - Conclusions: - The Tribunal sustained the personnel policy as a valid "regulatory decision" and upheld the individual decision as "proper, legal and in conformity with the Fund's governing practice and prescription." (Ms. "B", para. 81, p. 115.) ### Alleged breach of Settlement and Release Agreement — Mr. "V" - Mr. "V" had entered into a Retirement Agreement that provided for early retirement, settled all claims up to the date of the Agreement, required destruction of certain performance report copies and sealing of originals, removal of certain performance ratings from the personnel database, and confidentiality of the terms. (Mr. "V", para. 10, pp. 170-171.) - The 1996 Separation Benefits Fund (SBF) Report tabulated SBF disbursements by reason for separation and recipient characteristics and was designed to increase transparency and dispel concerns regarding equitable allocation of SBF resources. The Report was circulated to Fund Management, Senior Personnel Managers, the Ombudsperson and the Chairman of the Staff Association Committee and classified "Strictly Confidential." (Mr. "V", paras. 19-20, pp. 174.) - The entry relating to Mr. "V" described the reason for separation as: "Performance. Unable to produce work that met department's standards. Retired." (Mr. "V", para. 19, p. 174.) - The Tribunal affirmed the importance of enforcing negotiated settlement and release agreements where there is evidence of individualized bargaining and exchange of consideration. (Mr. "V", para. 79, p. 189.) - The Tribunal found evidence that the Fund had rejected a contractual provision proposed by Mr. "V" that might have afforded greater reputation protection, and thus concluded the Agreement's plain meaning should be enforced. (Mr. "V", para. 77-83, pp. 188-191.) - The IMFAT held the Fund's actions in preparing and circulating the 1996 SBF Report did not conflict with the Retirement Agreement and did not violate Fund rules or information security regulations. (Mr. "V", paras. 50-71, 91-101, pp. 181-197.) - The Tribunal characterized as a "reasonable act of managerial discretion" the Fund's decision to classify the 1996 SBF Report as "Strictly Confidential" and to circulate it on a "need-to-know" basis to a limited number of addressees, given policy considerations of transparency and equity. (Mr. "V", paras. 96, pp. 195.) ### Non-conversion of fixed-term appointment and retaliation claims — Ms. "C" (IMFAT Judgment No. 1997-1, August 22, 1997) - Ms. "C" alleged the Fund's decision not to convert her fixed-term appointment to regular staff was retaliation for complaints of sexual harassment; the Fund defended the non-conversion as discretionary based on insufficient interpersonal skills. (Ms. "C", paras. 19-20, pp. 79-80.) - The Tribunal held a good faith claim of harassment, regardless of sustainability, can give rise to a cause of action for retaliation; sustainability is not a precondition for a reprisal finding. (Ms. "C", para. 22, p. 81.) - The Tribunal did not find retaliation in Ms. "C"; the Applicant failed to prove abuse of discretion in the non-conversion decision. - The Tribunal recognized the Fund's authority to transfer staff and that consent is not generally required for transfers. (Ms. "C", para. 30, p. 83.) - The Tribunal found procedural irregularities in the assessment of Ms. "C"'s performance violating fair and reasonable procedures: - When her appointment was extended rather than converted, she should have been informed (a) precisely why she was not converted and (b) what steps she should take to correct interpersonal problems. (Ms. "C", para. 37, p. 84.) - When her supervisor reversed an earlier positive appraisal based on criticisms raised while she was on vacation, she was neither confronted by critics nor presented with specific and rebuttable incidents — a lapse in due process. (Ms. "C", paras. 16, 37, pp. 79, 84.) - Remedy: Although the Tribunal sustained the challenged decision, it found against the Fund in part on grounds of procedural irregularity. *IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. I — IMF ADMINISTRATIVE TRIBUNAL: ITS FIRST SIX YEARS.* ### conclusions as follows: ### conclusions ### Case findings (Ms. "C") - The Tribunal concludes that Applicant's allegation that her denial of conversion to a permanent post was in reprisal for her complaint of sexual harassment is unfounded. - The Tribunal concludes that Applicant has not met the burden of showing an abuse of discretion by the Fund in not giving her a permanent contract. - The Tribunal finds that imperfections and irregularities marked the process of the Fund's decision and permits the Tribunal to find against the Fund not wholly, but in part. - The Tribunal dismissed the Applicant insofar as she requested rescission of the contested decision. ### Remedy for procedural irregularity - The Tribunal held that procedural irregularities in the non-conversion decision gave rise to a compensable claim. - The Tribunal ordered the Fund to pay compensation to Ms. "C" in the sum equivalent to six months of salary. - By ordering compensation while sustaining the legality of the challenged decision, the Tribunal acknowledged the terms of the Statute's remedial provision and the limitation in Article III that it shall not have any powers beyond those conferred under the Statute. - The Tribunal observed that, pursuant to the second sentence of Article III, it shall apply "inter alia generally recognized principles of international administrative law concerning judicial review of administrative acts." - The remedy in Ms. "C" was noted to be consonant with case law of other international administrative tribunals. ### Costs: award, interpretation, and assessment - Having found partially against the Fund in Ms. "C", the Tribunal, pursuant to Article XIV (4) of the Statute, awarded the Applicant the "reasonable costs of her legal representation." - The Judgment directed that these costs be agreed between the parties, with the proviso that, in the event agreement could not be reached, an assessment would be made by the Tribunal on the basis of submissions by Ms. "C" and the Fund. - Order No. 1997-1 (Ms. "C", Applicant v. International Monetary Fund, Respondent) (December 22, 1997) established the principle that "[t]he limited degree to which Applicant was successful in comparison with her total claims justifies a measure of proportionality in the determination of the costs to be borne by the Fund." - Order No. 1997-1 held that the term "legal representation" encompassed not only the Applicant's representation before the Tribunal but also her representation in the administrative review process that she had to exhaust under Article V prior to invoking the judicial remedy. - In Order No. 1998-1, Assessment of compensable legal costs pursuant to Judgment No. 1997-1 (Ms. "C", Applicant v. International Monetary Fund, Respondent) (December 18, 1998), the IMFAT assessed Ms. "C"'s compensable costs at $15,000. - The Order grounded the assessment upon the finding that the Applicant had prevailed not on her main claim but only on a related one, and upon the statutory factors of the nature and complexity of the case, its preparation by counsel, and the amount of fees in relation to prevailing rates. ### Costs requests by the Fund and limits of symmetry between Articles XIV and XV - In Mr. "V", the Fund sought, under Article XV, an award of costs to the Fund for defending against allegedly frivolous claims earlier brought in the Grievance Committee but not pursued in the Administrative Tribunal. - Article XV provides that the Tribunal may order reasonable compensation by the applicant to the Fund if the application was manifestly without foundation or the applicant intended to delay resolution or to harass the Fund. - The Tribunal rejected the Fund's plea in Mr. "V" as lacking statutory basis, noting the Fund did not assert that the Application in the Tribunal was without foundation. - The Tribunal explained that Article XIV (4) and Article XV are not symmetrical: Article XIV (4)'s purpose is to provide for cost-shifting in favor of prevailing applicants to increase access to the Tribunal, whereas Article XV penalizes bringing frivolous claims to deter abuse of the review process. - The Tribunal emphasized that principles applicable in interpreting one provision might not be invoked for the other, and that including in an award under Article XIV (4) the costs of representation before the Grievance Committee served the statutory purpose of affording staff access to the Tribunal. ### Finality of the Tribunal's judgments - Article XIII (2) provides: "Judgments shall be final, subject to Article XVI and Article XVII, and without appeal." - Article XVII provides for interpretation or correction of judgments whose terms appear obscure or incomplete, or which contain a typographical or arithmetical error. - Article XVI provides for revision of judgment in the event of discovery of a fact which might have had a decisive influence on the judgment, with a six-month time limitation after acquiring knowledge of such fact. - The Tribunal affirmed the principle of finality in Order No. 1997-1 and Order No. 1999-1 (Interpretation of Judgment No. 1998-1 (Ms. "Y") (February 26, 1999)), rejecting Fund requests for interpretation to the extent those requests threatened finality. - In Order No. 1997-1 the Tribunal refused to entertain a challenge to the legality of its Judgment on the basis that legality is not a matter for interpretation because the judgment is final and without appeal. - In Order No. 1999-1 the Tribunal held that the Fund's request to interpret "jurisdiction" as used in the Decision in Ms. "Y" was inadmissible because the term standing alone was "neither obscure nor incomplete" and adoption of the requested interpretation would constitute an amendment of the Judgment. ### Role, jurisprudence, and expectations - In its first six years of existence, the International Monetary Fund Administrative Tribunal has provided an independent and binding forum for resolution of employment disputes between staff members and the Fund. - The Tribunal's jurisprudence demonstrates a measured application of its Statute, affirming staff members' rights to challenge the legality of the Fund's employment decisions while weighing the Fund's discretionary authority to manage its staff. - The Tribunal has sustained the legality of Fund decisions in cases involving setting of grade and salary, "underfilling" of positions, inclusion in a confidential report of information allegedly in violation of a settlement and release agreement, and non-conversion of a fixed-term appointment. - In the one case where the Tribunal found the non-conversion decision sustainable but marred by procedural irregularity, it awarded compensation and costs proportionate to its partial finding against the Fund. - The Tribunal has examined the compass of its jurisdictional grant, the justiciability of claims, standing, the exhaustion of remedies requirement of its Statute, and the relationship with the Fund's Grievance Committee. - It is anticipated that the IMFAT's body of jurisprudence will grow, that the Tribunal will refine and elaborate existing principles and shape new ones, building upon the important decisions of its first six years. *International Monetary Fund Administrative Tribunal Reports, Vol. I — conclusions* ### 1. The Administrative Tribunal of the International Monetary Fund held ### The Administrative Tribunal of the International Monetary Fund held its first judicial session in Washington, D.C., August 29-31, 1994 ### The Procedure - The full membership of the Tribunal, and the Registrar, were in attendance. On August 30-31, 1994, the Tribunal composed of Judge Stephen M. Schwebel, President, and Judge Michel Gentot and Judge Agustin Gordillo, Associate Judges, met to consider its first case brought against the Fund by Mr. "X". - On March 14, 1994, Mr. "X" filed an Application that did not meet requirements of the Rules of Procedure (Rule VII, paragraphs 2(d) and 3). On April 13, 1994, he was advised and given until May 3, 1994 to file a corrected and amplified Application; a corrected and amplified Application was filed on May 3, 1994. Pursuant to Rule VII, paragraph 6, the Application was considered filed on March 14, 1994. - The Application was notified to the Fund and transmitted to the Fund's General Counsel. The Fund filed a Motion to Dismiss on May 27, 1994, arguing lack of jurisdiction. - The Applicant filed an Objection on July 5, 1994; the Fund filed a Response on July 25, 1994. By authority of Rule XXI, the President ordered that further pleadings would not be in order since both parties had made an equal number of submissions. - The case was placed on the agenda for the first judicial session on June 6, 1994. The Tribunal decided not to hold oral proceedings, which neither party had requested. - Pursuant to the Rules of Procedure, a Motion to Dismiss suspends the period for answering the Application until the Motion is acted on by the Tribunal. Because of the Fund's Motion to Dismiss, the Tribunal confined its consideration to jurisdictional issues; substantive aspects were referred to only as necessary for disposition of jurisdictional issues. ### The Facts (undisputed between the parties) - April 1985: Applicant was advised that his termination as a member of staff was justified but was offered the option to resign in lieu of termination. Applicant agreed and submitted his resignation on June 5, 1985. - Applicant was allowed to withdraw his resignation to file a grievance with the Grievance Committee; he was advised that, on the record, he was viewed as culpable of serious misconduct and would be terminated effective September 30, 1985. - September 16, 1985: Applicant appealed his termination to the Grievance Committee. He was placed on annual leave beginning October 1, 1985, pending Committee recommendations and final decision; when annual leave expired he would continue on leave without pay. - February 14, 1986: Grievance Committee issued a Report and Recommendation finding termination for just cause and recommending that Applicant be given a final opportunity to resubmit his earlier resignation effective September 30, 1985 in lieu of termination. Managing Director accepted the Recommendation; Applicant was informed in writing on March 3, 1986. Mr. "X" resigned as of September 30, 1985. - March 20, 1986: Director of Administration wrote that Applicant's earlier resignation was reinstated and became effective on September 30, 1985, and offered an ex gratia payment of $10,000 under the Fund's Termination Benefits Fund. An attachment set forth the final financial settlement as of the date of his resignation and included a credit to Applicant for contributions to the Staff Retirement Plan after the effective date of resignation. - March 31, 1986: Applicant wrote expressing appreciation of the Fund's terms, referring particularly to the grant from the Termination Benefits Fund. - April 21, 1986: Senior Pensions Officer wrote that Applicant, having terminated service on September 30, 1985, was credited with 15 years and 3 months of eligible service under the Staff Retirement Plan; that service was treated as terminated as of September 30, 1985. The letter listed Applicant's contributions and set forth pension options under the Plan. - May 8, 1986: Applicant requested that his resignation take effect on January 8, 1986 (to coincide with expiration of accrued leave) rather than September 30, 1985, stating that his "position in the pension plan was adversely affected" by treating September 30, 1985 as the date of resignation and contending that "it is illegal for the Fund to withdraw contributions". - June 12, 1986: Director of Administration replied that Applicant initially resigned effective September 30, 1985; when he withdrew his resignation he was terminated with effect on that date; grievance process resulted in a recommendation to give a choice between resigning as of September 30, 1985 or being terminated as of that date; Applicant chose to resign as of September 30, 1985; "This was a final disposition of the matter, and it will not be reopened." - 1988, 1989, 1990, 1991 and 1992: Applicant wrote to the Fund regarding pension amounts; each time Senior Pensions Officer provided information computed on the basis of service ending September 30, 1985. - April 26, 1993: Senior Personnel Assistant supplied information on pension amounts in anticipation of Applicant's 55th birthday on November 19, 1993. - April 29, 1993: Applicant requested Director of Administration to review pension calculation made on the basis of service ending September 30, 1985 despite contributions to the Staff Retirement Plan having been made in the subsequent period of accrued leave. - May 12, 1993: Senior Personnel Assistant replied that records showed everything related to service after September 30, 1985 was reversed and service terminated for all purposes effective that date; salary had to be repaid and pension contributions effectively reversed by crediting them in calculation of what Applicant owed the Fund; a copy of the March 20, 1986 attachment was enclosed noting the credit item for reversal of pension contributions. ### The Respondent's contentions in support of the Motion to Dismiss - The Respondent maintains the act complained of—the reversal in 1986 of certain pension contributions—predates commencement of the Tribunal's jurisdiction and, under generally accepted principles of international administrative law, the Application should be dismissed as untimely. - The fact that the 1986 act has financial effects within the period of the Tribunal's competence does not confer jurisdiction. Allowing otherwise would permit a claim regarding an administrative act decided and implemented long in the past to circumvent the time bar because effects are continuing. - The bases of calculation of Applicant's pension were determined by the 1986 decision and are not the result of an administrative act taken in 1993. Inquiries by Applicant in 1988–1992 received information always based on service ending September 30, 1985. - Distinction drawn between an administrative decision and a payment: the 1986 decision to treat pensionable service as terminating September 30, 1985 was an administrative act; issuance of pension payments later simply flows from that decision and are ministerial acts not constituting a new administrative act. - An individual decision was made in 1986 and clearly communicated to the Applicant; the Applicant understood its effects as shown by his May 8, 1986 letter protesting "this decision." The June 12, 1986 letter described the arrangement as "a final disposition of the matter" and stated "it will not be reopened." - The amounts of pension were fixed at separation (except for cost-of-living adjustments); pension payments beginning at the end of 1993 are ministerial and involve no new "decision." ### The Applicant's contentions in opposition to the Motion to Dismiss - The Applicant's core claim: his pension is less than it should be because pension is calculated on service ending September 30, 1985 instead of January 1986 when accrued leave expired; contributions made between these dates were in effect reimbursed in the March 1986 financial settlement. - Applicant asserts the Fund's treatment was unlawful pursuant to a provision in the Staff Retirement Plan (Article 6, Section 2(c)) concerning irrevocability of employer contributions. - Applicant contends the issue is current because it affects him now; in anticipation of his 55th birthday he initiated correspondence months earlier to determine his status in the SRP. - Applicant characterizes the 1986 treatment of his contributions as a "threat" rather than a decision and maintains he was not on notice of unlawful treatment until December 1993 when the first pension payment was made; that was also the date on which the Fund committed its unlawful act. Applicant argues he could not reasonably be held to knowledge of any improper act until the reduced payment check was actually received. - Applicant asserts that any bookkeeping error, clerical error, mistake, or incorrect calculation could have been cured before the pension payment event; the unlawful plan could only have become known in December 1993 when the first pension check was received and the unlawful act (payment of an amount not reflecting contributions) was committed. ### Grounds of the decision - (Text ends prior to presentation of the Tribunal's formal dispositive reasoning in this excerpt.) *Source: Judgment No. 1994-1, IMF Administrative Tribunal Reports, Vol. I.* ### 22. Article XX of the Statute of the Tribunal provides that "The Tribunal ### 22. Article XX of the Statute of the Tribunal provides that "The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992 ...." ### Jurisdictional principle and legal threshold - Article XX, Section 1 of the Statute of the Administrative Tribunal provides: "The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if the channels of administrative review concerning that act have been exhausted only after that date." - The Tribunal must identify (a) the administrative act whose legality is challenged or illegality asserted, and (b) the date when that administrative act was taken, to decide a Motion to Dismiss based on Article XX. ### Mr. "X" — Tribunal's factual and legal analysis - Tribunal’s identification of the challenged administrative act: - The Tribunal concluded the challenged administrative act was the Fund's 1986 decision to reverse contributions made for Mr. "X"'s benefit to the Staff Retirement Plan between September 30, 1985 and the point in January 1986 when Mr. "X"'s accrued leave expired. - The dispositive question was whether the dispositive act determinative of Mr. "X"'s period of pensionable service was taken in 1986 or in 1993. - Facts found by the Tribunal regarding the 1986 decision: - The Fund treated Mr. "X"'s period of pensionable service as terminating as of the effective date of his resignation, namely, September 30, 1985, and reversed pension contributions made thereafter. - The Fund, in settling financial accounts with Mr. "X", credited him with pension contributions made after September 1985 during the period of his accrued leave, and deducted this credit from the total amount which Mr. "X" owed to the Fund. - By written communication of May 8, 1986, Mr. "X" contested the decision and contended that the withdrawal of contributions from the Plan by the Fund was "illegal". - That assertion of illegality was voiced in 1986, more than five years before October 15, 1992. - Legal reasoning on 1993 pension calculation: - The Tribunal found the 1993 calculation of Mr. "X"'s pension was a "purely arithmetical act" governed by the 1986 decision as to the extent of his pensionable service. - Other than cost-of-living increases, the pension had been determined by the 1986 disposition. - The fact that the 1986 decision produces consequences "now" does not extend the Tribunal's jurisdiction; otherwise the limitation in Article XX would be rendered meaningless. - The Applicant's argument that the 1986 decision was open to reconsideration did not alter the fact that the decision was taken in 1986; the Fund officially informed the Applicant the decision was "a final disposition of the matter and it will not be reopened." - Tribunal conclusion in Mr. "X": - Continued discontent with the results of an administrative act and eventual renewal of a challenge cannot put in question the fact that the act was taken and taken when it was taken. - FOR THESE REASONS the Administrative Tribunal of the International Monetary Fund, unanimously, decided summarily to dismiss the Application. - Decision locale and date: Washington, D.C., August 31, 1994. ### Procedural context and rules applied (illustrative procedural points from later case material) - Rule XII and pleadings: - The President allowed parties 45 days for a Motion for Summary Dismissal and Objection because the case had been filed prior to amendment of Rule XII (45 days changed to 30 days). - Rule XII, para. 8 provides: "There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests." - Effect of a Motion to Dismiss: - A Motion to Dismiss suspends the period of time for answering the Application until the Motion is acted on by the Tribunal; consideration is confined to jurisdictional issues and substantive aspects are referred to only to the extent necessary for disposition of those issues. ### Illustrative factual and contested points from the Ms. "S" matter (jurisdictional context and contested dates) - Key dates and procedural events: - Ms. "S" took a full-time contractual position with the Fund in 1986; part-time contractual service from September 15, 1988 until February 24, 1993; appointment to the staff on February 25, 1993. - March 24, 1993: Ms. "S" requested that her contractual service be considered qualified service under the Staff Retirement Plan (SRP) on an exceptional basis. - April 19, 1993: Mr. Rea declined to accept her request. - September 9, 1993: Ms. "S" requested Mr. Rea, as Chairman of the Administration Committee of the SRP, to bring her request before that Committee. - May 4, 1994: Secretary of the Administration Committee replied refusing exceptional treatment and declining to recommend an amendment to the SRP. - The Applicant contended Section 3.2(b)(ii) of the SRP was adopted on December 14, 1992 (date of the current published text). The Fund maintained the provision was originally adopted in 1974 and amended on April 30, 1991, with effect from May 1, 1991. - Text of the contested SRP provision (Section 3.2(b)(ii)) as cited: - "(b) ... eligible service of a participant shall include: (ii) any period that commenced prior to May 1, 1991, if that period is not less than three years and immediately preceded a period of contributory service, during all of which the participant was retained by the Fund as a consultant in full-time service, provided that the consultant was employed by the Fund on May 1, 1991." - Contentions summarized (Fund vs Applicant): - Fund’s main contentions in support of dismissal: - The regulation at issue pre-dates the establishment of the Tribunal; Tribunal lacks jurisdiction under Article XX. - A decision applying a regulation adopted prior to October 15, 1992 cannot be complained of even if taken subsequent to that date. - Section 3.2(b)(ii) was adopted on April 30, 1991, effective May 1, 1991; the substantive element (requirement of full-time service) existed since 1974. - The Administration Committee’s consideration and refusal did not constitute an "administrative act" or "decision" for purposes of the Statute because it left existing policy in place and declined to recommend (rather than making a decision that itself amended policy). - Applicant’s contentions in opposition: - Challenges the Administration Committee decision of May 4, 1994 and contends she exhausted all channels of administrative review. - Argues Section 3.2(b)(ii) discriminates against women by limiting pension credit to full-time employment. - Alleges arbitrary, capricious and discriminatory application of the provision to deny credit for otherwise creditable employment time. - Maintains the provision was adopted and promulgated on December 14, 1992. - Seeks Tribunal relief to instruct Administration and Pension Committees to amend Section 3.2(b)(ii) by adding "or part-time" after "in full-time", and to include her entire period of contractual service in eligible service for pension purposes. - Argues the Administration Committee’s refusal to refer the matter to the Pension Committee constituted a "decision" blocking access to the Pension Committee and thereby an administrative act taken while the Tribunal’s jurisdiction was in effect. *Source: Administrative Tribunal of the International Monetary Fund, Judgment No. 1994-1 (Mr. "X" v. IMF) and related procedural excerpts from Judgment No. 1995-1 (Ms. "S" v. IMF) as reported in IMF Administrative Tribunal Reports, Vol. I.* ### 2. For the purposes of this Statute: (a) the expression 'administrative act' shall mean ### 2. For the purposes of this Statute: (a) the expression 'administrative act' shall mean ### Definition of "administrative act" - The expression "administrative act" shall mean any individual or regulatory decision taken in the administration of the staff of the Fund. - Article II, Sections 1 and 2 of the Statute require an "individual or regulatory decision" for the Tribunal's competence. ### Procedural history and parties' positions (Ms. "S" matter) - Applicant: Ms. "S" challenged the Administration Committee's refusal to refer her request for an amendment of the SRP to the Pension Committee and Executive Board. - Fund's arguments in Response to Applicant's Objection to Motion to Dismiss: - No requirement that the Administration Committee endorse or transmit a proposed amendment to the SRP for the Pension Committee to consider it. - Refusal to recommend an amendment does not preclude raising the issue with the Pension Committee; the Pension Committee includes two members of the staff. - Applicant has not shown that a refusal to amend a rule adopted prior to the effective date of the Tribunal's jurisdiction is a "decision" for Article II purposes. - The contested SRP provision pre-dated the establishment of the Tribunal and therefore falls outside jurisdiction under Article XX, Section 1 of the Statute. - Applicant's Rejoinder: - SRP contains "no channel for administrative review of the arbitrary determinations of the Administration Committee or the Pension Committee...." - No procedure for how pension decisions are made or reviewed; proceedings are not open to staff members. - Applicant was not notified whether the Pension Committee reviewed her request; she received a memorandum dated September 27, 1994 informing her that her request would not be referred to the Pension Committee. - Applicant contends Administration Committee's adverse decision was taken after October 15, 1992 and thus within the Tribunal's jurisdiction. ### Tribunal's document request and evidentiary steps - Tribunal invoked Article X, Section 1 of the Statute and Rule XVII, paragraph 3 of the Rules of Procedure to request documents and information on SRP decision-making and communication to staff. - The Fund produced the requested documentation. ### Grounds of the Tribunal's decision (jurisdictional analysis) - Respondent's central contention: lack of jurisdiction because (a) no administrative act (no individual or regulatory decision) and (b) pension provisions complained of pre-date the Tribunal's jurisdiction (Article XX, Section 1). - Tribunal's findings on "administrative act": - Letter of May 4, 1994 from the Secretary of the Administration Committee stating: "Section 3.2(b) of the Plan clearly requires that the individual must have been employed full-time by the Fund for the whole of the three-year period immediately preceding contributory service, and your service does not meet that test," was held to reflect a decision. - Rejection of Applicant's request for an exception constituted a decision. - Administration Committee's decline to transmit the Applicant's request to the Pension Committee constituted a decision. - Tribunal's findings on time bar and "pre-existing" rules: - 1974 amendment to Article 3 of the Plan ("Eligible Service") and the 1991 revision pre-dated establishment of the Tribunal. - On October 10, 1974, the Chairman of the Administration Committee transmitted a proposal to amend Article 3 to give retroactive credit for substantial consultant service immediately before joining the Plan; the Fund's practice treats "consultant" as embracing contractual employees. The 1974 consideration contained no reference to part-time contractual service. - The 1991 amendment changed Article 3 and the Plan's Report on Operations as of April 30, 1991 explained the change, noting: "Because the classification of 'staff member on temporary appointment' has been abandoned, the provision was removed from the Plan. The provision concerning contractual appointments gave rise to a number of problems.... As a 'grandfathering' exception, the current provisions would apply to all contractual persons who were employed by the Fund prior to May 1, 1991, if they ultimately would satisfy the conditions for validating contractual service." - The "grandfathering" exception applied to full-time employees only; the 1991 amendment did not refer to or alter the situation of part-time contractual employees. - Article XX, Section 1 bars complaints challenging the legality of elements of provisions adopted before October 15, 1992; denial of requests for exceptional application or amendment of a "pre-existing" provision cannot confer jurisdiction. - Article VI, Section 2's general allowance to assert illegality of a regulatory decision "at any time" is subject to the lex specialis of Article XX. ### Legal conclusion and disposition (Ms. "S") - The Tribunal concluded that it lacks jurisdiction to consider Ms. "S"'s application insofar as it challenges the legality of elements of the pre-October 15, 1992 provisions. - Because Article XX, Section 1 is dispositive, the Tribunal dismissed the Application. - Decision: The Administrative Tribunal of the International Monetary Fund, unanimously, decides summarily to dismiss the Application. - Date and signatures recorded: - Washington, D.C., May 5, 1995. - Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge. - Stephen M. Schwebel, President; Philine R. Lachman, Registrar. ### Summary of Mr. M. D'Aoust case introduction (JUDGMENT No. 1996-1) - Proceedings convened April 1 and 2, 1996 before Judges Stephen M. Schwebel (President), Michel Gentot and Agustin Gordillo (Associate Judges). - Applicant: Mr. Michel D'Aoust challenged: - (i) individual administrative decision setting his initial grade and salary; and - (ii) regulatory decision concerning the procedure for setting salary of non-economist staff upon appointment. - Relief requested: - Quash the administrative decision setting his salary at $65,800 and grade at A12, and order a retroactive salary adjustment at a minimum of $76,000. - Find disparate treatment of economists and non-economists in setting starting salaries to be illegal. - Order an additional adjustment of some $2,000 to offset the lower salary from application of the non-economist matrix. - Procedural posture: - Grievance Committee recommended rejection of the first complaint; Managing Director acted accordingly. - Second complaint brought directly to the Tribunal. - Fund filed an Answer on December 4, 1995 asserting correct application of methodology. - Reply filed December 22, 1995 and Rejoinder filed February 1, 1996. - No oral hearings; Tribunal had transcript of Grievance Committee hearings. - Key factual findings (undisputed): - Mr. D'Aoust appointed December 6, 1993 for a 2-year fixed-term as Personnel Officer in Administration Department at grade A12 with starting salary $65,800. - Recruitment history: position originally advertised internally at grade A13/A14 in 1992; regraded and offered at A12 to Mr. "X" at $63,000; Mr. "X" later promoted to A13. - 1993 recruitment of additional less-senior position advertised at grade A10/A11; when no internal candidates applied, Deputy Division Chief sought external interest from Mr. D'Aoust; grade not mentioned to candidate during inquiry. - Hiring supervisor concluded position should be A12 due to need for more experience; initial offer $64,000, final accepted salary $65,800. - Methodology applied (explained during Grievance Committee hearings and an outside consultant's report) caps at ten years for relevant professional experience weight for non-economist applicants; that cap is not applied to economist applicants. - Mr. D'Aoust commenced work December 6, 1993; sought salary increase February 28, 1994; Director of Administration denied but authorized $1,000 increase effective January 20, 1995 after outside consultant noted potential misunderstanding of job status. - Grievance Committee recommended denial June 13, 1995; Managing Director accepted recommendation July 21, 1995. - A contested fact remains between parties (not specified here in the supplied excerpt). *IMF Administrative Tribunal Reports, Vol. I* ### 8. The principal fact about which there is disagreement is whether, as Mr. ### imfat-1 - 8. The principal fact about which there is disagreement is whether, as Mr. ### Dispute over consideration for the same job - Applicant (Mr. D' Aoust) contends he was considered for the same job twice: once in 1992 and again in 1993. - The 1992 position was filled by Mr. "X". - Applicant asserts the 1993 question put to him was "performing the same as the one for which I had been interviewed, obviously not the same position, but the same job", and therefore both jobs should have carried grade A13. - Tribunal notes the position initially advertised at A/13 was offered to and accepted by Mr. "X" at grade A/12. - Tribunal finding: the 1993 position offered to and accepted by Mr. D' Aoust differed from the 1992 position offered to Mr. "X"; there was no legal obligation to confer the same grade on both positions. ### Salary calculation and alleged errors - Applicant maintained he understood salary would be based on total years of relevant previous experience and comparison with similarly situated staff. - In calculation of his salary, only ten years of relevant prior experience were taken into account, in accordance with the Fund's practice of truncating prior experience at ten years for non-economists. - Only the grade and salary of a single comparator (Mr. "X") were weighed. - Applicant alleges "factual errors" by mistaken use of the economist matrix and "procedural anomalies" (absence of new job description and internal advertisement) leading to inappropriate grade and salary. - Respondent maintains grade and salary were set in accordance with normal procedures and internal law, computational errors were irrelevant because internal relativities rendered Mr. "X"'s salary a ceiling for Mr. D' Aoust, and no general principles of law were infringed. ### Jurisdiction ratione personae - At the time the Fund decided grade and salary, Mr. D' Aoust was not yet a member of staff. - Article II, Section 1 of the Statute of the Tribunal provides competence: - a. "by a member of the staff challenging the legality of an administrative act adversely affecting him;" - b. "by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant." - Tribunal reasoning: - Once Mr. D' Aoust accepted the offer and signed the contract, he became a member of the staff and his grade and salary were determined by the offer accepted by him. - Conclusion: since the offer and acceptance thereafter affected him as a member of staff, the Tribunal is competent to adjudge his case. ### Acceptance of the offer of employment - Respondent's argument: - Terms in a letter of appointment (grade and salary) are explicitly accepted by the staff member and presumptively binding absent proof they are blatantly mistaken (e.g., arithmetical or typographical error), contrary to a mandatory rule of the Fund, or induced by fraud or misrepresentation. - Tribunal holds: - The presumption in favor of binding acceptance stands but is rebuttable because applicants are in an unequal negotiating position and the Fund may possess relevant information unknown to applicants. - Acceptance does not bar challenge where misrepresentation of facts or irregularity in appointment process is alleged. - There may have been misunderstanding as to "the exact status of the job" when Mr. D' Aoust accepted his appointment. - As remedial action, the Director of Administration increased Mr. D' Aoust's salary by $1,000 p.a. as of January 20, 1995 and promoted him to grade A13 as of May, 1995 under an unusual acceleration of normal procedure. - Tribunal deduces room for doubt as to whether there was a true meeting of the minds; thus acceptance does not bar challenge to legality of determination of grade and salary. ### Competence regarding the Grievance Committee's procedures and recommendations - Applicant sought Tribunal review of the Grievance Committee's "decision", alleging substantive and procedural irregularities in those proceedings and asserting the Tribunal functions as an appellate body of the Committee. - Respondent contends the Tribunal is not an appellate body and that review of Grievance Committee proceedings as if on appeal would be inconsistent with the Tribunal's Statute. - Tribunal clarification: - The Tribunal's competence is limited to judging the legality of administrative acts as defined by the Statute; administrative acts include individual and regulatory decisions taken in administration of staff. - Complaints must exhaust internal review procedures before Tribunal application. - General Administrative Order No. 31 establishes the Grievance Committee "to hear cases within its jurisdiction and to make recommendations to the Managing Director" and to establish hearing procedures. - Section 7.09 of the Order: "The Managing Director, or the Managing Director's designee, will take the final decision in the matter and will transmit the decision in writing to the grievant." - Conclusion: - The Grievance Committee's recommendations do not constitute "administrative acts" because the Committee is not empowered to take final decisions. - The Tribunal is not an appellate body from the Grievance Committee; its competence is broader (it may take evidence and make findings of fact and law). - The Tribunal may, however, weigh the record generated by the Grievance Committee as evidence. ### The 1992 and 1993 posts: facts and Tribunal findings - 1992: Compensation Policy Division announced a vacancy for a senior compensation officer or senior personnel officer at grade A13/A14. - Mr. "X" was recruited from outside and given grade A12 rather than A13/A14 because he lacked the experience and Fund knowledge of his predecessor required to operate with little supervision. - 1993: position initially viewed as replacement for a personnel officer with five or six years of experience; internally advertised at A10/A11 to find a candidate needing significant training. - When no qualified internal candidate appeared, decision made to recruit from outside someone with more relevant experience able to work without long development on the review of the grading system; Mr. D' Aoust was felt to meet those requirements at level A12. - Tribunal conclusion: the 1993 position was clearly junior to the 1992 position; applicant did not share Fund's perception, but on evidence the two positions and their qualifications differed, so no obligation to grant identical grades. ### Procedural irregularities, errors, and applicable standards - Applicant alleged procedural irregularities and factual errors causing wrongful offer of grade and salary: - Failure to internally re-advertise the vacancy. - No new job description formulated. - Use of single peer-comparator (Mr. "X") to establish internal relativities. - Erroneous application of economist matrix in evaluating relevant pre-employment experience. - Respondent reply: - Starting grade and salary were consistent with the Fund's flexible employment system; use of comparators is discretionary. - Computational errors were irrelevant because salary was just below the midpoint of the range and Mr. "X"'s salary constituted a cap. - Truncation of relevant previous experience at 10 years is normal practice for non-economists. - Fund transgressed neither internal law nor general principles of law. - Legal standard and precedent: - Classification and grading is an exercise of discretionary authority subject to judicial review only for irregularity. - Administrative tribunals emphasize observance of procedural rules (e.g., internal publication of vacancies) to enable staff application. - Procedural irregularities and errors may be deemed irrelevant where actions or omissions did not affect the complainant or his financial interests (examples cited where complainant not in class affected or where unlawful omission had no financial effect). *IMF Administrative Tribunal, Judgment No. 1996-1, IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. I* ### 24. Before Mr. D' Aoust accepted a position with the Fund he could not ### imfat-1 - 24. Before Mr. D' Aoust accepted a position with the Fund he could not ### Procedural irregularities and effect on applicant's decision - Finding: Before Mr. D' Aoust accepted the position he could not have been acquainted with the Fund's procedures; any procedural failures of which he was then unaware (e.g., not re-advertising the position, errors in computation of the salary offered) could not have influenced his decision to accept the position. - Finding: The salary initially offered was re-negotiated at the time to his advantage. - Conclusion: The Tribunal does not accept Mr. D' Aoust's contentions concerning the effect of the procedural irregularities and factual errors in the process of his appointment which he cites. - Note: The question of truncation of relevant experience is dealt with separately below. ### Discretionary authority over grading and salary - Party positions: - Applicant: Asserts the Fund abused administrative discretionary authority in assignment of grade and salary. - Respondent: Emphasizes determination of an initial grade and salary requires exercise of judgment; if starting salary is within the range associated with the position it is consistent with the Fund's system and does not contravene Fund rules or general principles of law. - Precedent and principle: - International administrative tribunals regularly hold assignment of grades to posts is an exercise of discretionary authority; tribunals are reluctant to interfere unless evaluation was tainted by irregularity (references: In re Dunand and Jacquemod, ILOAT, 65th Session, Judgment No. 929, para. 5; In re Garcia, ILOAT, 51st Session, Judgment No. 591, paras. 3-4). - Case specifics: - Applicant asserts he was misled as to nature of the job and that a starting grade of A12 for a position internally advertised as A10/A11 demonstrates invalidity. - Respondent contends job content had been redefined and duties and responsibilities augmented; Applicant's experience did not justify higher entry grade than A12. - Tribunal findings: - No evidence Mr. D' Aoust was deliberately misled. - There appears to have been some difference in understanding as to status of the job; Fund made an equitable adjustment: a $1,000 p.a. increase in salary and an accelerated promotion. - The Tribunal does not equate any such misunderstanding with deliberate misleading, nor does the adjustment demonstrate the initial determination was flawed. ### Truncation of non-economist prior experience (ten-year rule) - Issue: Whether the Fund's practice of truncating the weight attached to previous experience of non-economist applicants at ten years was wrongfully employed to adversely affect Mr. D' Aoust's initial salary. - Findings and principles: - The Tribunal finds the Fund may not unreasonably favor economists when deciding terms of staff employment since economics is at the heart of the Fund's mission. - When the Fund applied the so-called non-economist matrix to Mr. D' Aoust, cutting off credit for prior experience at ten years, that alone did not give rise to a cause of action against the Fund on grounds of inequality of treatment. - Conclusion: The exercise of administrative discretion by the Fund in setting Mr. D' Aoust's grade and salary was not invalidated by procedures followed, including the ten-year truncation and the use of a single comparator; alleged procedural irregularities were not shown to have influenced that exercise. ### Challenge to legality of the practice as a regulatory decision - Applicant's legal challenges (alleged violations of Fund internal law and general principles of law): - Methodology treating prior experience differently for economists vs. non-economists (prior experience for non-economists taken into account only for a maximum of 10 years) constitutes unlawful inequality of treatment. - System is rooted in systemic and gender discrimination. - System of determining grades is arbitrary, raising question of abuse of discretion. - Respondent's defense: - Argues Tribunal lacks jurisdiction ratione temporis over long-standing practice truncating recognition at ten years and that Applicant fails to demonstrate illegality. - Jurisdictional framework: - Article II, Section 2 of the Statute defines "administrative act" and "regulatory decision", including "any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund." - The Report to the Board of Governors explains the Tribunal's competence to review regulatory decisions and individual decisions taken pursuant thereto. - Threshold question: - For the practice to be a regulatory decision under Article II, Section 2.b, there must be a "decision" taken by an organ authorized to take it. ### Tribunal's jurisdictional findings and transparency concerns - Evidence on origin of the ten-year truncation: - The practice was never decided upon by the Executive Board, the Managing Director, or the most senior officials. - The practice appears in no rule, General Administrative Order, handbook, handout, statement on conditions of employment, contract, or other published official paper of the Fund. - At the time applied to Mr. D' Aoust, it was an unpublished practice known to and employed by a small number of officials of the Administration Department. - Jurisdictional conclusion: - The Tribunal is unable to regard the practice as flowing from or constituting a regulatory decision; therefore the Tribunal lacks jurisdiction to pass upon the practice as a regulatory decision. - The Tribunal remains competent to consider the validity of the application of that practice to Mr. D' Aoust as an individual decision. - Observations on managerial and procedural implications: - A practice that affects determination of salary for a substantial proportion of staff but is largely unknown may require consideration by the Managing Director. - Notice by which rights and obligations are clearly conveyed is required by due process and by the structure of the Statute of the Administrative Tribunal. - Article VI, Section 2 limits time for challenging regulatory decisions to three months after announcement or effective date; regulatory decisions are presumed announced for purposes of that limitation. - The Report's scheme preserves the ability to raise illegality of a regulatory decision at any time in support of an admissible application challenging an individual decision taken pursuant thereto. - Jurisprudence of other international administrative tribunals requires "ample information", "ample publicity", or "reasonable notice" for internal actions or decisions so employees are clearly informed of working conditions (references: In re Niesing, Peeters and Roussot, ILOAT, 66th Session, Judgment No. 963, para. 5; In re Connolly-Battisti (No. 5), ILOAT, 39th Session, Judgment No. 323, para. 22). *IMF Administrative Tribunal — JUDGMENT No. 1996-1, IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. I* ### 38. In view of the conclusion set out above in paragraph 35, there is no ### JUDGMENT No. 1997-1 ### Prior decision summary (Judgment No. 1996-1) - The Administrative Tribunal of the International Monetary Fund, unanimously, decided: - (A) in respect of the individual decision determining the grade and salary of Michel D'Aoust, the Application is rejected; - (B) in respect of the alleged regulatory decision pursuant to which such determination was made, the Tribunal finds no regulatory decision within the meaning of its Statute on which to rule. - Washington, D.C., April 2, 1996. - Judges and officers listed: Stephen M. Schwebel, President; Michel Gentot, Associate Judge; Agustin Gordillo, Associate Judge; Philine R. Lachman, Registrar. ### Case and procedure (Ms. "C" v. International Monetary Fund) - Event dates and procedural milestones: - Applicant employed from August 5, 1992 until August 4, 1995 on a two-year fixed-term appointment plus a one-year extension. - Application filed January 17, 1997. - Fund filed Answer on March 31, 1997. - Reply filed May 2, 1997; Rejoinder filed June 5, 1997. - Grievance Committee Recommendation and Report to the Managing Director issued October 17, 1996; recommendation accepted November 6, 1996. - Oral hearings were not held before the Tribunal; Tribunal had transcript of Grievance Committee hearings. - Tribunal composition for the case hearing August 21–22, 1997: - Judge Stephen M. Schwebel, President; - Judges Nisuke Ando and Michel Gentot, Associate Judges. ### Factual findings and timeline - Appointment and compensation: - Appointed August 5, 1992 to Staff Assistant, grade A4, at a salary of $28,850 p.a. - Alleged incidents and reporting: - Two alleged incidents of remarks regarded as sexually harassing: spring 1993 and December 6, 1993. - Complaint reported three days after December 6, 1993 to the Deputy Director. - Performance reviews and personnel actions: - First APR covered initial appointment to August 1993; signed December 21, 1993 (supervisor), January 19, 1994 (review officer), February 24, 1994 (Department Head). No explicit performance rating recorded for that APR. - Second APR covered early August 1993 through end of December 1993; signed May 2 (supervisor), May 3 (review officer), May 4, 1994 (Department Head). Outcome from second APR: - Performance rating: "2" - Merit award: 2.0 percent - Promotion to grade AS - Salary increase to $30,610 p.a. - Proposed action: one-year extension of fixed-term appointment until August 1995 (rather than conversion to regular staff). - Transfer memorandum dated August 29, 1994 confirmed transfer effective August 29, 1994 from African Department to Staff Benefits Division, Administration Department, for remainder of fixed-term to August 4, 1995, with written assessment after approximately nine months to inform conversion decision. - Third APR covered January 1, 1994 to December 31, 1994; prepared February 1, 1995 by supervisor in ADM; supervisor held performance discussion February 27, 1995 and signed report that day; review officer signed February 28, 1995; Department Head signed May 1, 1995, assigning a rating of "3". - March–July 1995 developments: - In early March 1995 three co-workers complained to Mr. "B" about Applicant's interpersonal behavior. - Meeting with Applicant on March 29, 1995 confronted her with accusations of being rude, condescending, acting like a "know it all", not trying to work towards consensus, blaming others, and not being a team player. - Applicant called in sick the next day, was referred to the medical department of the World Bank, placed on sick leave, and never returned to work. - Mr. "B" memorialized the March 29, 1995 meeting in a Memorandum to File dated March 30, 1995 appended to the third APR. - On May 1, 1995 the Department Head signed off on the third APR assigning rating "3". - On May 10, 1995 the review officer sent Applicant a letter informing her that her employment would expire in August 1995 at the termination of the one-year extension. - Applicant later received a completed version of the third APR in which the "3" rating had been replaced by a "2" rating, included a merit award of 1.2 percent, and a new salary of $30,980 p.a.; review officer noted in July 28, 1995 signature that Applicant had been absent since March 29, 1995 and consequently had not been able to improve her performance; report signed by Director of ADM on July 31, 1995. - Grievance and Tribunal filing: - Applicant appealed to Director of Administration November 27, 1995; appeal rejected December 11, 1995. - Applicant filed a Grievance with the Grievance Committee; Committee recommendation upheld Fund's decision; Applicant filed Application with Tribunal January 17, 1997. ### Parties' core contentions and Tribunal-relevant issues - Applicant's contentions: - Fund's decision not to convert fixed-term appointment to regular staff was unlawful and in retaliation for complaints of sexual harassment. - The harassment complaints were subject to "cover-up" rather than effective action. - Promises by the Director of Administration that performance would be evaluated free from influence of African Department were false; Fund never intended conversion after extension and transfer. - Extension instead of conversion was inconsistent with promotion and salary increase after second APR, suggesting deficient performance was a pretext. - Final assessment by new supervisor was tainted by information from African Department. - Applicant was not put on notice of alleged interpersonal difficulties, was surprised by March 29, 1995 accusations, not afforded opportunity to rebut specific allegations, and Fund violated elemental principles of law. - Fund's contentions: - Decision not to convert was proper given Applicant's history of interpersonal problems and pattern of complaints about disruptive or confrontational behavior both before and after harassment allegations. - Record cited includes complaints from persons unconnected to Applicant's supervisors, reports of disruptive behavior during a training course, confrontational reactions to admonitions, failure to follow instructions correctly and timely, inability to cope under pressure, and a pattern of interpersonal difficulties unrelated to sexual harassment allegations. - Applicant demonstrated assertive, at times belligerent, and defensive responses and was unable to accept legitimate criticism. - Tribunal procedural note: - Tribunal considered submissions, written record, and Grievance Committee transcript; no oral hearings before Tribunal. *Administrative Tribunal of the International Monetary Fund (Judgment No. 1997-1, August 22, 1997).* ### 20. The Fund's principal contention is that Applicant did not meet the ### imfat-1 - 20. The Fund's principal contention is that Applicant did not meet ### Overview - The Fund's principal contention: Applicant did not meet the high standards with regard to interpersonal skills requisite for conversion to regular staff. - Concerns about interpersonal skills were "neither isolated nor unsubstantial" and "surfaced throughout Applicant's career in the Fund," involving confrontation with other staff, a belligerent style, difficulty accepting instruction, and unwillingness to consider fault. - The Fund treats conversion to regular staff as discretionary; serious doubt as to qualifications, including interpersonal relations, may justify refusal to grant a regular staff appointment. ### Considerations and burden of proof - Applicant, having held a fixed-term appointment, carries the burden of proof (Safavi v. The Secretary General of the United Nations, UNAT Judgment No. 465, para. V (1989)). - The Tribunal examined: - Allegations concerning incidents of harassment. - Reactions by Fund officials to Applicant's complaints. - Modalities of her transfer to the Administration Department (ADM). - Assessments of her performance and the final decision. ### The issue of sexual harassment - The Tribunal did not need to decide whether the alleged incidents qualified as sexual harassment or merely inappropriate behavior. - Remarks attributed to Ms. "C"'s supervisor Mr. "A": - Were apparently not denied. - "Should not have been made" by a Fund supervisor to a subordinate on Fund premises. - Were described as tasteless and misplaced; Ms. "C" found them offensive. - Characteristics of the remarks: - Only two remarks, separated by "some six months"; whether they formed a pattern was open to question. - The second remark occurred during a conversation Ms. "C" could earlier have terminated. - The Tribunal found: - Mr. "A" should have been firmly cautioned by superior authority. - Applicant could reasonably have believed she was an object of sexual harassment and could have made an accusation of sexual harassment in good faith (whether or not sustainable). - Sustainability of an accusation made in good faith is not a pre-condition for a finding of reprisal (Belas-Gianou v. The Secretary General of the United Nations, UNAT Judgment No. 707 (1995), p. 45). ### Applicant's procedural steps and the Fund's response - Applicant's actions: - Complained to the Deputy Director of the African Department. - Mentioned the events to the Head of the African Department. - Approached the Director of Administration, Mr. Rea, complaining about the African Department environment and the failure to secure the apology she requested. - The Respondent's position: - Did not contest Applicant's account of incidents. - The Director of Administration, even assuming full accuracy of Applicant's account, considered the incidents did not constitute sexual harassment calling for disciplinary action or an abuse of authority. - Relevant Fund policy: - "Policy on Harassment" (January 1995) definition and policy excerpt: - Harassment: "any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment." - Sexual harassment includes "sexual assault, unsolicited requests for sexual favors, requests for sexual favors linked to implied threats or promises about career prospects, unwanted physical contact, visual displays of degrading sexual images, sexually suggestive conduct, or offensive remarks of a sexual nature." - The Fund is committed to stop harassment and associated retaliatory behavior; supervisors must refrain from actions perceived as harassment and must stop harassment in areas under their supervision. (P. 1.) - The policy and staff bulletins describe formal and informal reporting channels and state that anyone bringing a complaint is protected against any form of reprisal (Policy on Harassment, January 1995, p. 4). ### Reprisal allegation and Tribunal's assessment - The Tribunal asked whether, assuming a good faith complaint, Applicant proved the Fund acted in bad faith to "cover-up" its failure. - Findings: - The Director of Administration investigated and concluded the incidents did not merit disciplinary action. - Facts such as an Administrative Officer taking Applicant to lunch and advising not to pursue the matter, Applicant's subsequent promotion, and later transfer to ADM did not demonstrate design by the Fund to "cover-up" inaction on the complaint. ### Extension of appointment and transfer to ADM - Applicant alleges: - Transfer to ADM was designed to place distance between a decision to terminate and its implementation. - An agreement with Mr. Rea that conversion decision would be made by ADM based on her ADM performance, "untainted" by prior AFR problems. - Tribunal's legal context and findings: - Administrative authorities of international organizations generally possess the power to transfer staff; no general requirement that staff consent to transfer. - It would be surprising if Ms. "C"'s transfer were subject to the condition that conversion decision exclusively turn on ADM performance. - It would not have been appropriate administrative procedure to withhold prior performance difficulties from new supervisors; transfer without explanation of reasons would not have been possible. - Applicant argued lack of budgetary provision for a permanent position showed absence of intention to retain her; record shows a senior ADM official testified Fund's budget would have been sufficiently flexible to accommodate a permanent position. ### Performance reviews — notice and content - Unusual promotion and salary increase at end of Applicant's second year of fixed-term appointment were atypical; not sufficient to create expectation of conversion at end of third year (citing M. D'Aoust v. International Monetary Fund, IMFAT Judgment No. 1996-1). - Guidelines for Conversion of a Fixed-Term Appointment require supervisors to consider ability "to work effectively with superiors, peers and subordinates ...." - Deficiency in interpersonal skills may lawfully be taken into account in Annual Performance Reports (APRs). - Due process requirements: - Adequate warning and notice are prerequisites to defense and rebuttal (Safavi v. The Secretary General of the United Nations, UNAT Judgment No. 465 paras. VI -VIII (1989)). - Fund's Guidelines require reasons for nonconversion be given, at least where there is no extension. ### APRs and timeline of performance assessments - First APR: - Gave notice of reservations about character of her relations with colleagues. - Referred to "work pressures affecting Ms. 'C''s 'normally good relationship with other members of the division'" and need for "a calmer demeanor in pressure situations." - Supervisor noted some colleagues found her "confrontational at times." - APR agreed Ms. "C" should adopt "a 'customer-friendly' style." - Second APR: - Referred to effort to dissipate doubts as to willingness or ability "to fit into the institution." - No explicit description of interpersonal problems; Applicant noted communication difficulties with an economist while on mission. - Both APRs evaluated her work performance highly. - Third APR progression: - Version discussed with Mr. "B" on February 19, 1995 was "extremely positive" — described her as "a valued team member" who worked with "the appropriate degree of tact" and "soon remedies any error brought to her attention," suggesting she "would benefit from 'a course on enhancing listening skills'". - Approximately one month later Mr. "B"'s appraisal was sharply reversed after three co-workers approached him (para. 12). Mr. "B" met with Ms. "C", conveyed accusations, and concluded "negative feedback" reflected on her "interpersonal and team work skills." - Mr. "B" told her to stop such behaviors immediately or to find out why many perceived her that way, suggested counseling or an interpersonal skills assessment course, and recorded that he "could do without Ms. 'C''s help rather than put 'the team's esprit and its collective ability to service its customers at risk'." ### Procedural irregularities identified by the Tribunal - The Tribunal concluded Applicant's reprisal claim was unfounded and that Applicant did not meet burden to show abuse of discretion by the Fund in denying a permanent contract. - Nevertheless, the Tribunal found imperfections and irregularities in the Fund's process, warranting partial findings against the Fund: 1. When Ms. "C" was granted a one-year extension and transferred to ADM, she should have been given precise understanding of: - (a) why she was not converted to permanent status at the end of two years; and - (b) what steps she should take to correct perceived interpersonal-relation problems. - Neither (a) nor (b) appears to have been done. 2. At the dispositive session of 29 March 1995, where Mr. "B"'s earlier highly positive appraisal was peremptorily overturned: - Ms. "C" was not confronted by her critics nor presented with specific and rebuttable incidents of criticism. - This absence of opportunity to rebut was a lapse in due process. - Additional due process concerns: - The Tribunal found the Fund should have ensured that, upon transfer to ADM and in the course of her work there, Ms. "C" was fully aware of the need to improve interpersonal skills and the possibilities for doing so. - Evidence suggests Mr. "B" learned of the problem belatedly from co-workers; her immediate supervisor and Ms. "C" herself were last to recognize the issue. - When supervisors were given evidence from co-workers of interpersonal deficiencies, Ms. "C" should have been afforded a meaningful opportunity to rebut, including where appropriate the opportunity to meet and question complainants or witnesses (citing Carl Gene Lindsey v. Asian Development Bank, ADBAT Decision No. 1, para. 9 (1992)). ### Tribunal's conclusions - Applicant's allegation that denial of conversion was in reprisal for her complaint of sexual harassment is unfounded. - Applicant did not meet the burden of showing abuse of discretion by the Fund in not giving her a permanent contract. - The Fund's decision process contained two principal procedural irregularities: - Failure to provide precise notice of reasons for nonconversion and steps to remedy interpersonal problems upon extension and transfer to ADM. - Failure to afford Applicant a meaningful, rebuttable opportunity at the dispositive session of 29 March 1995 when critical allegations were relied upon to overturn an earlier positive appraisal. *IMF Administrative Tribunal, Judgment No. 1997-1* ### 43. In the view of the Tribunal, these failures by the Fund's administra- ### JUDGMENT No. 1997-1 and JUDGMENT No. 1997-2 ### Tribunal findings on liability and remedies (Judgment No. 1997-1) - The Tribunal found that failures by the Fund's administration give rise to a compensable claim of the Applicant, even though the decision not to offer Ms. "C" permanent employment stands. - The Tribunal recalled its Statute (Article III) and the requirement to apply generally recognized principles of international administrative law concerning judicial review of administrative acts. - Article XIV of the Statute (quoted in part) was applied: - "1. If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision." - "4. If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant's counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates." - The Tribunal held that it has authority to reject an application challenging the legality of an individual decision while finding the Fund liable in part (e.g., for procedural irregularity) even where the substantive decision remains sustainable. - Decision (unanimous): - First: The Application is dismissed insofar as it requests rescission of the decision not to convert Ms. "C"'s term appointment to a permanent appointment. - Second: The Fund is liable to pay compensation to Applicant for the irregularities specified, in the sum equivalent to six months of salary as her salary was established as of August 4, 1995. - Third: The Applicant shall be awarded reasonable costs of her legal representation. - Compensable costs shall be agreed between Applicant and the Fund. - If agreement cannot be reached, the Tribunal will assess costs having regard to the submissions of the Applicant and of the Fund. - Formalities: - Washington, D.C., August 22, 1997. - Judges listed: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Philine R. Lachman, Registrar. ### Facts and relief sought (Judgment No. 1997-2 — Ms. "B" v. International Monetary Fund) - Procedural timeline and composition: - The Tribunal met on December 22 and 23, 1997, composed of Judge Stephen M. Schwebel, President, and Judges Georges Abi-Saab and Nisuke Ando, Associate Judges. - Applicant background and appointment history: - Applicant became employed effective February 7, 1983. - In August 1994 she was promoted to Grade A6. - On September 20, 1995 Applicant was appointed to a position advertised at Grade A7 (Vacancy No. IV95-80, Grade A7 / A8) but, in the Fund's view, did not meet requisite conditions for promotion at that time and thus served at her then salary pursuant to the Fund's "underfilling" policy for approximately one year; she was promoted to Grade A7 on November 1, 1996. - Annual Performance Report 1994: rating "l" (outstanding). - Annual Performance Report 1995: rating "l" (outstanding); received a 5.9 percent merit increase raising salary to $38,550. - Relief requested by Applicant: - Retroactive administration of salary and associated benefits from September 20, 1995, the effective date of the promotion to Grade A7, including the standard promotion increment of five-percent of such salary. - Full reimbursement of attorney and counselor fees and associated costs (amounts not yet determined at time of filing). - In the Reply, additional requests included: - Award promotion to Grade A8 effective September 20, 1997, consistent with time-in-grade requirement of Staff Bulletin 89/28, Annex (2 years at A7) and Job Standards Manual, including standard five percent (5%) salary increase and all other associated benefits. - Compensatory damages of three hundred percent (300%) of Applicant's gross salary, predicated on the Grade A8 salary level. - Exemplary or punitive damages in the amount of $200,000 (Two hundred thousand dollars). - Compensation for all legal representation costs incurred. - Fund's position: - The Fund maintained that the decision to require Applicant to "underfill" the A7 position was based on a legitimate policy antedating her appointment and was proper because she did not meet the advertised qualifications as of September 1995. - The Fund urged the Tribunal to reject Ms. "B"'s claim entirely and award no relief. - Procedure and filings: - Application filed on July 3, 1997 (considered filed on July 3, 1997 after amendment and transmission on August 1, 1997). - Fund filed its Answer on September 15, 1997. - Reply filed October 17, 1997; Rejoinder filed November 19, 1997. - Oral argument was not held. Tribunal reviewed record of Grievance Committee proceedings including transcript of oral hearings. - Selection and grading dispute: - A selection panel rated Applicant "the best overall candidate" and unanimously selected her to fill the vacancy. - A disagreement arose between Division 1 (selecting division) and Staff Development Division (SDD) regarding the appropriate grade for appointment. - Division 1 supervisors believed Applicant qualified for immediate promotion to A7 and that the vacancy announcement permitted such appointment; the Senior Personnel Manager submitted a Request for Personnel Action for promotion-appointment to A7. - SDD concluded Applicant had not satisfied minimum time-in-grade or education requirements for Grade A7 as described in the vacancy announcement: - Grade A7 qualifications included a university degree in the relevant field or equivalent, supplemented by a minimum of three years of progressively responsible experience in the particular field at Grade A6, or equivalent. - Grade A8 required, in addition, a minimum of two years of progressively responsible work experience at Grade A7 or equivalent. - SDD interpreted "or equivalent" as referring to employment outside the Fund or contractual service, not time at Grade A8 counting as A6. - SDD found Applicant had only one year of the three-year requirement for progressively responsible experience at Grade A6 and determined she should "underfill" at Grade A6 for approximately 12 months. - The SDD communicated that under the "recent amendments to the time-in-grade policy" Applicant would be required to "underfill" for approximately 12 months and could be proposed for promotion to Grade A7 in the November 1996 cycle, subject to satisfactory performance. - Applicant's challenge and Grievance Committee: - Applicant requested review of the "underfilling" decision on August 19, 1996; Director of Administration upheld the determination citing both education and experience shortfalls and attached the "Kennedy-Swain Memorandum" dated September 7, 1995 as the policy basis allowing "underfilling." - Applicant filed a Grievance on September 25, 1996 contesting the underfilling. Hearings occurred December 11, 16, 17, 1996. - Grievance Committee on March 19, 1997 issued Recommendation and Report denying the Grievance; the Managing Director accepted the recommendation. - Applicant's principal contentions summarized: - The Director of Administration impermissibly relied on the "Kennedy-Swain Memorandum," which did not meet criteria of a regulatory decision. - Mr. Kennedy and Mr. Swain exceeded their authority in promulgating the Memorandum; significant changes in administrative policy must be promulgated by the Managing Director or Deputy Managing Director; General Administrative Order No. 1, Rev. 1 does not delegate that role to the Director of Administration or subordinates. - The practice of underfilling was conducted outside of, and not in conformity with, existing Fund policies on promotions and time-in-grade requirements (Staff Bulletin No. 89/28). - The Memorandum was addressed only to Senior Personnel Managers (copies to Administrative Officers and Staff Association Committee), bore no effective date, and was not made known to Applicant until after she initiated review; Applicant alleged the Memorandum was intended to cover up illegal acts and did not constitute a valid regulatory decision. ### Procedural posture and materials reviewed - The Tribunal had the record of Grievance Committee proceedings, including transcript of oral hearings at which Applicant, senior Fund officials, and witnesses were heard. - Key dates and filings preserved exactly: - Application filed July 3, 1997; transmitted to the Fund August 1, 1997. - Fund Answer filed September 15, 1997. - Reply filed October 17, 1997; Rejoinder filed November 19, 1997. - Grievance Committee hearings: December 11, 16, 17, 1996. - Grievance Committee Recommendation and Report dated March 19, 1997. - Director of Administration response and attached Memorandum dated September 7, 1995. - Promotion to Grade A7 effective November 1, 1996. - Salary after 1995 merit increase: $38,550. - Merit increase percentage: 5.9 percent. - Requested promotion increment: five-percent (5%). - Requested compensatory damages claim: three hundred percent (300%) of gross salary. - Requested exemplary damages: $200,000 (Two hundred thousand dollars). *Administrative Tribunal of the International Monetary Fund, Judgment No. 1997-1 (Washington, D.C., August 22, 1997) and Judgment No. 1997-2 (December 23, 1997).* ### 19. The assignment of her grade, the Applicant contended, should have ### The assignment of her grade, the Applicant contended, should have ### Applicant’s contentions regarding promotion and grading - The Applicant contended she should have been considered for immediate promotion under Staff Bulletin No. 89/28, which provides exceptions permitting immediate promotion where an incumbent has "a combination of superior performance and the assessed potential to advance rapidly through several higher grades." - Applicant’s Annual Performance Reports for 1994 and 1995 evidenced her "superior performance." - Applicant argued that: - Ms. "B" (the appointing authority) improperly overruled the recommendations of her immediate supervisors and her SPM that she be immediately promoted to A7. - The SPM had responsibility and accountability for personnel activities in his Department and was expected to take personnel decisions on the Department’s behalf for all Grade A staff. - Job qualification requirements for Vacancy No. IV95-80 were not consistent with prevailing Job Standards, which mention completion of a university degree program but do not require a degree in a specific field; the Job Standards are controlling. - Applicant was fully qualified for promotion to Grade A7 at the time of her selection and appointment in September 1995 because she met the advertised educational and experience qualifications. - The decision to require underfilling was arbitrary, capricious and in contravention of the Fund’s policies and law. ### Respondent’s principal arguments and factual assertions - At the time of Ms. "B"'s appointment, underfilling constituted a bona fide unwritten source of law, consistently applied until codified in the Kennedy-Swain Memorandum, and applied thereafter. - Strict application of Staff Bulletin No. 89/28 would have required the Applicant to serve a minimum of three years at Grade A6 before eligibility for promotion to Grade A7. - The Applicant had served in a Grade A6 position for little more than one year when she applied for promotion to Grade A7. - Supervisors may exercise discretion only after the minimum time-in-grade requirement has been satisfied; capacity to perform effectively at the higher grade is an additional requirement. - The Kennedy-Swain Memorandum was an authorized and valid document; Ms. "B" benefited from the Memorandum’s policy. - Departments have discretion to set higher qualifications than Job Standards; reasonable additions to minimum requirements are permissible where there is a rational relationship between requirements and the position. - The Senior Personnel Manager’s decision is a departmental proposal; central approval authority regarding grade and salary lies with the appropriate division of the Administration Department. - The Fund concluded the Applicant is not entitled to the relief requested. ### Staff Bulletin No. 89/28: rules and time-in-grade requirements - Staff Bulletin No. 89/28 prescribes rules concerning promotions within the same job ladder and into alternative ladders. - For a promotion from Grade A6 to A7, Staff Bulletin No. 89/28 sets a time-in-grade requirement of three years in Grade A6. (Annex to Staff Bulletin 89/28.) - Relevant quoted passage: "Before an individual's promotion within a given job ladder can be considered at all, it must be established that a position with the requisite functions and responsibilities is open at the higher grade level... Assuming an opening exists, the individual who is a candidate for promotion must have met the relevant time-in-grade requirement." (Staff Bulletin No. 89/28, p. 4.) - The Tribunal concluded the Applicant did not meet the time-in-grade requirement under Staff Bulletin 89/28. ### Kennedy-Swain Memorandum: policy change and underfilling procedure - On September 7, 1995, Messrs. Kennedy and Swain issued the "Amendment to Time-in-Grade Policy in Cases of Promotions to Higher Level Positions Through the Vacancy Process" (Kennedy-Swain Memorandum) to liberalize the time-in-grade restriction of Staff Bulletin 89/28. - Purpose stated: "simplification of the time-in-grade rules covering promotions when staff are selected for higher grade positions through the Career Opportunities (vacancy list) process." - Under the Memorandum: - A candidate may be promoted without meeting all requirements, including time-in-grade, but if experience or education required is lacking, underfilling must take place for about one year. - Revised Policy (quoted): promotion timing depends on whether the candidate meets the specific experience and educational qualifications as set forth in the Job Standards and/or the advertisement. If the candidate fully meets criteria, appointment will be at the advertised grade. If not, but can be expected to meet requirements soon with training/on-the-job experience, the candidate will initially be appointed one grade below the lowest grade indicated for the position; promotion to the lowest grade will occur after approximately one year on May 1 or November 1, provided successful performance. (Kennedy-Swain Memorandum, pp. 1-2.) ### Legal analysis of practice, policy, and authority - The Tribunal noted internal Fund law includes unwritten sources: administrative practice can give rise to legal rights and obligations; generally recognized principles of international administrative law also apply (Article III of the Tribunal’s Statute and Commentary). - The Tribunal cited de Merode (WBAT) and ILOAT Judgment No. 323 to support that established administrative practice can become binding until altered. - In Judgment No. 1996-1 (D' Aoust), the Tribunal identified essential conditions for a valid regulatory decision: taken by an authorized organ, laid down in a published official document, with a determinable effective date, and staff given reasonable notice. The Tribunal stated it would consider whether the Memorandum satisfied those conditions. - Applicant argued Messrs. Kennedy and Swain lacked authority to set Fund policy because their Job Standards authorize them to "[Initiate] and [participate] in drafting Fund policy and procedures in relevant areas and [oversee] implementation of policies [but only] when approved by management." - Respondent maintained the Division Chiefs acted within scope: adaptations to Bulletin No. 89/28 were anticipated; ADM (Administration Department) has responsibility and authority to develop, implement, and administer personnel policies as confirmed in the Fund’s handbook "FY 1996 Activities and Organization"; the Memorandum addressed perceived inequity and had the endorsement of the Director of Administration. ### Tribunal’s interim findings and considerations - The Tribunal affirmed that Staff Bulletin No. 89/28 imposes a three-year time-in-grade requirement for promotion from Grade A6 to A7 and that time spent in Grade A5 cannot be substituted for time-in-grade in Grade A6 without defeating the requirement’s rationale. - The Kennedy-Swain Memorandum liberalized the prior rule by allowing appointment at the advertised grade when the candidate fully meets criteria, and otherwise permitting initial appointment one grade below with promotion after approximately one year contingent on successful performance. - The Tribunal set out to examine whether the Kennedy-Swain Memorandum constituted a lawful prescription (authorized organ, published official document, determinable effective date, reasonable notice to staff) and whether it could lawfully justify the decision to underfill Applicant’s appointment. *Judgment No. 1997-2, IMF Administrative Tribunal Reports, Vol. I.* ### 42. The major responsibilities of the Compensation Policy Division, ### 42. The major responsibilities of the Compensation Policy Division, ### Responsibilities of the Compensation Policy Division - The Handbook assigns to the Compensation Policy Division (Chief: Mr. J. Kennedy) the responsibility: - "To maintain job descriptions, job grading standards, and a job titling system; to maintain a grade structure that provides for reasonably equitable relationships among positions across job ladders; to determine and recommend the assignment of each position to the appropriate grade; and to conduct job audits as required." - Major activities include: - "To contribute to the development of policies to provide a program of staff benefits that supports the recruitment and retention objectives of the organization and takes into account the general competitive level of benefits in comparator organizations as well as the special requirements of an international organization." (Handbook, pp. 15 and 16.) ### Responsibilities of the Staff Development Division - The Staff Development Division (Chief: Mr. Swain) responsibilities include: - "1. Career Development. To formulate policies and procedures and oversight for career development programs and services, which include performance evaluations, long-term career assessments, promotions, staff mobility, separations and outplacement, salary reviews and merit increases." - "1. Policy planning and review: The division will continue its involvement in the development of personnel policy in a number of areas ..." ### Job standards and asserted limits on policy authority - Excerpts from Job Standards dated December 2, 1991: - Compensation Policy, Division Chief (ADM), Mr. Kennedy: - "Under the direction of the Director, (ADM), supervises the overall management of the policies and programs related to compensation policy, job grading matters, personnel records, and the computerized personnel information system . . . Manages the smooth and timely functioning of all division activities. Initiates and participates in drafting Fund policy and procedures in relevant areas and oversees implementation of policies when approved by management ... Maintains, develops, and recommends changes in the compensation system and salary administration guidelines ..." - Staff Development, Division Chief (ADM), Mr. Swain: - "Under the direction of the Director, (ADM), supervises the overall management of the policies and programs related to staff development including ... promotion policies ... Manages the smooth and timely functioning of all division activities ... Initiates and participates in drafting Fund policy and procedures in relevant areas and oversees implementation of policies when approved by Management." ### Applicant's argument on lack of authority and the Tribunal's findings - Applicant argued division chiefs lacked authority to change policy and relied on: - General Administrative Order No. 1 and Staff Bulletin No. 89/28 as limiting policy promulgation to the Managing Director, Deputy Managing Director, or Director of Administration; and - D'Aoust (para. 35) where a contested practice was held not to constitute a regulatory decision because it was "distilled in no rule, General Administrative Order, handbook or handout, statement on conditions of employment, contract or other published official paper of the Fund". - Tribunal findings: - The Chiefs of the Compensation and Staff Development Divisions testified that the change embodied in the Kennedy‑Swain Memorandum had been discussed with, and approved by, the former Director of Administration, Mr. Rea, prior to his departure. - The Fund maintained the change codified a long-standing practice and that policies approved by one Director of Administration do not lapse upon succession. - The Tribunal found the official functions of the divisions and their chiefs "confer upon them sufficient authority to codify a pre-existing practice and issue the contested policy memorandum." - The Tribunal noted the Kennedy‑Swain Memorandum liberalized existing restraints on promotions by removing an unintended and inequitable result of Bulletin No. 89/28: that staff promotions within the same job ladder were subject to time-in-grade requirements that did not apply in the same way when staff were promoted into a different job ladder. ### Form and validity of the Kennedy‑Swain Memorandum as a personnel policy instrument - Legal principles cited: - Article II, Section 2.b. of the Tribunal's Statute defines "regulatory decision" as "any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan..." - Precedent (OASAT, Judgment No. 117, Kouyoumdjian v. Secretary General of the OAS, OASAT Judgment No. 94) emphasizes administrative actions generally must be in writing or documented and satisfy minimum requirements (signature, date, clarity, notice) to be valid and effective. - Tribunal conclusion: - "The Memorandum was a lawful form for the issuance of a personnel policy." - Reasons: it was a written statement of an adjustment in personnel policy based on a pattern of practice, related to its antecedents, setting forth the policy change, and it was circulated to senior personnel officers of every Fund Department, to their administrative officers, and to the Staff Association. ### Retroactivity and effective date - Applicant's contention: - Applied for the personnel assistant position on August 9, 1995; the Kennedy‑Swain memorandum was dated September 7, 1995; Applicant argued she was not affected if the memorandum was effective on its date, and that any retroactive application would require an explicit effective date in the memorandum. - Respondent evidence and position: - Asserted that by the date of Applicant's promotion, underfilling had become a fairly standard practice and provided a Table titled "Staff who have underfilled before the Amendment to the TIG [Time-in-grade] Policy was issued". - Argued that in the absence of a specific provision setting an effective date, the date of the memorandum denotes the date it became effective. - Tribunal determination: - In absence of a specific effective-date provision, the memorandum date, September 7, 1995, denotes its effective date. - That date antedated the Fund's decision regarding Applicant's promotion (September 20, 1995). - The Tribunal rejected Applicant's view that the date she applied for promotion (August 9, 1995) should be controlling. ### Limited circulation and notice - Distribution of the Memorandum: - Circulated to the Senior Personnel Manager (SPM) of each Department, to the Administrative Officer of each Department, and to the Staff Association. - Applicant's critique: - Argued limited circulation indicated no intent to make the memorandum known Fund‑wide; she alleged she learned of it only after requesting review of her promotion on August 19, 1996. - Relied on D'Aoust to argue that underfilling was an unpublished practice known to only a small number of officials and used capriciously. - Respondent's response: - Argued limited distribution did not affect validity because SPMs act as promulgators of policies/practices within departments and were expected to convey the information to affected staff. - Noted the memorandum was favorable to Applicant and others; lack of widespread publication would be material only if staff were adversely affected by reliance on incomplete information. - Observed that the vacancy announcement and general time-in-grade requirements made clear Applicant would have to serve at Grade A6 for three years before promotion to Grade A7. - Tribunal synthesis: - Distinguished D'Aoust, emphasizing notice is required where legality of a regulatory decision is challenged directly; here the memorandum memorialized a practice and was circulated to senior personnel officers and other administrative recipients. - Concluded the underfilling policy reflected in the Kennedy‑Swain memorandum resulted from an authorized and valid exercise by officials responsible for career development, was beneficial to staff, and was properly applied to Applicant's promotion. ### Procedural and statutory context regarding timing of challenges - Quoted statutory and commentary provisions: - Article VI, Section 2 limits the period for challenges to the Tribunal: "An application challenging the legality of a regulatory decision shall not be admissible if filed with the Tribunal more than three months after the announcement or effective date of the decision, whichever is later; provided that the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging the legality of an individual decision taken pursuant to such regulatory decision." - Commentary emphasizes that announcement/effectiveness dates are critical to determine timeliness so that legality and related issues may be resolved before considerable reliance or implementation of the contested decision. *Source: Judgment No. 1997-2, IMF Administrative Tribunal Reports, Vol. I* ### 57. In the Application, Ms. "B" complains of an individual decision on the ### imfat-1 - 57. In the Application, Ms. "B" complains of an individual decision on the ### Background and central issues - Applicant (Ms. "B") challenged an individual decision alleging it was based on an unlawful regulatory decision. - Key legal question: interplay between the time element (limitations/notice) and challenges that attack both an individual decision and the underlying policy. - Relevant procedural framework: Tribunal's Statute and the Fund's Commentary (Commentary, p. 26). ### Time element, exhaustion, and suspension of limitation periods - The Fund's Commentary explains: - Grievance Committee first hears issues within its jurisdiction (correct interpretation or application of Fund rules). - If Grievance Committee rejects the case, the staff member may proceed to the Tribunal and may then raise the legality of the underlying regulatory decision "regardless of whether more than three months had passed since the individual decision at issue had been taken." - "In essence, the pursuit of administrative remedies as to the issue of interpretation or application would suspend the time period for seeking review of the decision on grounds for which no administrative review is available." (Commentary, p. 26.) ### Notice and systemic versus individual reasons - Where a challenge is based on an unlawful regulatory decision, the time element "loses its importance." - If the criterion of notice is grounded in systemic reasons, notice is not mandatory where those systemic reasons do not apply. - Tribunal finds that in the present case, notice is not required for systemic reasons; remaining question: whether reasonable notice of the particular policy change is required by general principles of law. ### Precedent: D'Aoust and related holdings - In D'Aoust, the Tribunal held that a practice did not meet essential criteria for a regulatory decision because it did not afford reasonable notice to staff; evidence showed the practice was "an unpublished practice known to and employed by a small number of officials of the Administration Department of the Fund." (Para. 35.) - Distinguishing factors in the present case: - The Kennedy-Swain Memorandum was published and circulated to all SPMs, all Administrative Officers, and to the Staff Association. - The Memorandum was one of the periodic adjustments foreseen by Staff Bulletin No. 89/28 ("Minimum Time-in-Grade Requirements, Staff Bulletin No. 89/28, December 21, 1989, p. 1"), which explicitly states that time-in-grade requirements "may be adjusted from time to time as warranted by organizational developments..." - The Bulletin was circulated to all staff members, making periodic adjustments something staff "were, or could be, aware" might occur. - The Memorandum codified a practice that had been followed in the past and constituted an interim measure pending broad revision of the entire salary structure of the Fund. ### Precedent: relevance of notice when no adverse effect - Tribunal cites international tribunal jurisprudence that procedural irregularities or lack of information are irrelevant when they could have had no influence on the complainant's legal position or financial interests. - Example: IDBAT in Ricardo Schwarzenberg Fonck v. IDB (Case No. 2) (1984) held lack of information immaterial where it could have had no influence on the complainant's legal position. - Where lack of notice operates to the complainant's advantage, lack of notice furnishes no ground for complaint. - OASAT Judgment No. 118 (Rene Gutierrez v. Secretary General, Organization of American States) emphasizes duty to inform those directly concerned and that failure to inform "denies them the right to defend themselves" and thus "the action taken can have no legal effect of any kind to the detriment of the persons against whom it is taken." (V. POLICY OF THE GENERAL SECRETARIAT; VI. ERRORS OF PROCEDURE.) ### Application to Ms. "B" and the Kennedy-Swain Memorandum - Ms. "B" received promotion before completing the "three years at Grade A6 required under Staff Bulletin 89/28." - Tribunal concludes the limited circulation of the Kennedy-Swain Memorandum did not adversely affect Applicant. Tribunal notes: "However, if the facts of the case were such that the failure to inform the Applicant of the Kennedy-Swain Memorandum had adversely affected her, the Tribunal might attach different consequences to the inadequacy of notice." ### Staff Bulletin No. 89/28 exceptions (as quoted) - The exceptions enumerated in Staff Bulletin 89/28 include: - "(3) An incumbent with a combination of superior performance and the assessed potential to advance rapidly through several higher grades may, on a exceptional basis, be considered for promotion to the next higher grade at a more rapid rate than indicated by the minimum time-in-grade. Such exceptions, which are expected to be very few, could occur when a staff member is appointed to a supervisory position. Review or Senior Review Committee endorsement is required for such exceptions in the case of promotions to Grades A14 and above." - "(4) A newly-recruited staff member's service as a contractual employee, if doing similar work at a comparable level, will be taken fully into account in applying the time-in-grade requirements." - "(5) A newly-recruited staff member's first promotion to the next higher grade in a job ladder may be made without reference to the minimum time-in-grade requirements if the staff member is recruited for a probationary period at one grade lower than the normal entry level for the job ladder or one grade below the lowest level at which the position was advertised on the vacancy list, or if warranted by a combination of superior performance and relevant prior work experience." (pp. 2-3.) ### Parties' positions on exceptions and interpretation - Respondent's position: - At time of Applicant's appointment, Applicant had served "only a little over one year at Grade A6" and thus was not eligible for immediate promotion to Grade A7 under Staff Bulletin No. 89/28. - Applicant did not have the "assessed potential to advance rapidly through several higher grades," nor was she a newly recruited staff member; therefore exceptions are inapplicable. - Interprets Bulletin's language as prescribing minimum requirements to which supervisors are bound; the sentence cited by Applicant gives flexibility only after the minimum requirement has been met. - Applicant's position: - Argues supervisors are authorized to set aside time-in-grade requirements and that the time served at Grade A6 was "irrelevant and immaterial" because supervisors recommended immediate promotion. ### Tribunal findings on application of Bulletin and Memorandum - Tribunal is not persuaded that a supervisor could promote immediately without meeting the minimum time-in-grade; time-in-grade as prescribed is a minimum requirement. - Noted that the Kennedy-Swain Memorandum nonetheless allowed Applicant to be promoted without fully meeting vacancy conditions, including the time-in-grade requirement. - Tribunal finds: - Staff Bulletin would not have allowed Applicant, who was neither newly recruited nor appraised as having the potential to advance rapidly through several higher grades, to receive an immediate promotion. - Applicant "failed to meet the time-in-grade requirements" under both the Staff Bulletin and the Kennedy-Swain Memorandum. ### Remaining contested issues to be decided (as stated by the Tribunal) - (a) Did the vacancy announcement violate the Fund's law? - (b) Was the decision that Applicant did not meet the conditions listed in the vacancy announcement justified? - (c) Did Ms. "Z" have the authority to block the immediate effect of the recommended promotion? - (d) Was the final decision flawed because of being arbitrary, capricious, discriminatory, or in violation of law? ### Vacancy announcement qualifications (as quoted) - Vacancy advertised a position at Grade A7/AS with qualifications: - "1. For Grade A7, a combination of education and specialized training equivalent to a university degree in human resources management, or a related field, is required, supplemented by a minimum of three years of progressively responsible experience in personnel work at Grade A6, or equivalent. A seasoned level of competence and technical expertise, including an in-depth knowledge of precedents in benefits administration is required at this grade level. - For Grade A8, in addition to the training and experience for Personnel Assistant/ A7, a minimum of two years of progressively responsible work experience in the benefit administration area at Grade A7, or equivalent." _The IMF Administrative Tribunal, Judgment No. 1997-2._ ### 2. Thorough knowledge of Fund benefits policies, procedures, and ### 2. Thorough knowledge of Fund benefits policies, procedures, and ### Vacancy announcement qualifications vs. Job Standards - Applicant argued posted requirements were unlawful, relying on the Job Standards for Grade A7 to claim she met the desirable qualifications. - Job Standards for Grade A7 (quoted as desirable qualifications): - "Educational development, including and/or supplemented by work experience, typically acquired through the completion of a university degree program; or progressively responsible experience in administrative work, including a minimum of three years of personnel work at Grade A6, or equivalent, is required." - Applicant maintained she exceeded these qualifications. - Applicant alleged vacancy announcement requirements were predicated on a "modified" set of Job Standards not yet issued, concluding the vacancy used a non-existent set of Job Standards. - Respondent (the Fund) position: - Applicant failed to meet the posted requirements because she lacked the time-in-grade or equivalent and did not have the required university degree (her degree in languages was neither in the specified field nor a related field). - The vacancy announcement, not the Job Standards Manual, is controlling for specific advertised positions. - Recruiting departments have discretion to set more stringent qualifications than the Job Standards Manual. - The Job Standards Manual provides general guidance; specifics are to be filled in by job descriptions or vacancy announcements. - The "desirable qualifications" section describes only the "desirable minimum amount and kind of training and experience." - Tailoring of requirements by recruiting departments in consultation with CPD is an expected, long-standing practice. - A judicial body should not disturb managerial determinations of qualifications unless there is no rational relationship between the requirements and the position. - For the Personnel Assistant position at issue, the requirements for appointment at Grade A7 were found manifestly reasonable and rationally related to the position. - Tribunal conclusions: - Vacancy announcements may properly refine and particularize qualifications set out in the Job Standards and did so legally in this case. - The underfilling policy, as articulated in the Kennedy-Swain Memorandum, permitted the promotion of the Applicant to Grade A7 without her attaining a university degree in human resources management and without meeting the three year minimum time-in-grade at Grade A6. ### Authority over promotion approvals and role of SDD and SPMs - Applicant contested authority of Ms. "Z" (Staff Development Division) to "overrule" the requested immediate promotion, citing Staff Bulletin No. 89/28. - Fund's Answer described decision-making structure for promotions and grading, explaining roles of Senior Personnel Managers (SPMs) and the Staff Development Division (SDD). - Fund position on roles: - SPMs do not have final authority to approve promotions; their role is coordination and oversight, not to supplant divisional responsibility. - Approval by the appropriate divisional authority in ADM (Administration Department) is required. - Tribunal conclusions: - The Senior Personnel Manager acted properly in requesting approval of the Applicant's promotion rather than taking a unilateral decision effecting it. - SDD's decision declining immediate promotion approval was an appropriate exercise of its authority to monitor conformity of promotions with Fund-wide rules. ### Tribunal ruling on underfilling and final decision - Tribunal decided the underfilling of the position to which the Applicant was promoted was proper, legal and in conformity with the Fund's governing practice and prescription. - Decision (unanimous): - (A) Requiring the Applicant to underfill, for approximately one year, a position to which she was promoted on September 20, 1995 did not contravene the internal law of the Fund and reflected a proper application of lawful rules concerning promotions and time-in-grade requirements; - (B) The Application is rejected and the Applicant's demands for relief are dismissed. - Formal decision date and signatories: - Washington, D.C. December 23, 1997 - Stephen M. Schwebel, President - Georges Abi-Saab, Associate Judge - Nisuke Ando, Associate Judge - Stephen M. Schwebel, President (signature line repeated) - Philine R. Lachman, Registrar ### Subsequent Judgment No. 1998-1 — Introduction, procedure, and facts (Ms. "Y") - Tribunal session dates and composition: - Met on December 17 and 18, 1998; Judges: Stephen M. Schwebel (President), Nisuke Ando (Associate Judge), Michel Gentot (Associate Judge). - Procedural history and motions: - Application filed by Ms. "Y" on August 7, 1998; she had been employed with the Fund since 1971. - Fund filed a Motion for Summary Dismissal under Rule XII on jurisdictional grounds (failure to exhaust administrative review channels). - Rule XII effect: filing of motion suspends period for answering the application until Tribunal acts on the motion. - Applicant allowed additional 15 days beyond the usual 30-day period to file an Objection (President exercised authority under Rule XXI). - Applicant’s amended request for production of documents was rejected as clearly irrelevant to the jurisdictional issues. - Applicant's request for oral proceedings denied because Rule XIII, paragraph 1 condition ("necessary for the disposition of the case") was not met for the jurisdictional issues. - Rule citations and procedural provisions referenced verbatim where quoted: - Rule XII: "The Fund may file such a motion within thirty days of its receipt of the application. The filing of the motion shall suspend the period of time for answering the application until the motion is acted on by the Tribunal." - Rule XII, para. 5: "The Applicant may file with the Registrar a written objection to the motion within thirty days from the date on which the motion is transmitted to him." - Rule XXI para. 2: "The Tribunal, or, when the Tribunal is not in session, the President after consultation where appropriate with the members of the Tribunal may in exceptional cases modify the application of these Rules, including any time limits thereunder." - Rule XVII (Production of Documents), including paras. 1–4, quoted in full in the source. - Rule XIII, para. 1: "Oral proceedings shall be held if the Tribunal decides that such proceedings are necessary for the disposition of the case. In such cases, the Tribunal shall hear the oral arguments of the parties and their counsel, and may examine them." - Factual chronology (key dates and facts preserved exactly): - Applicant employed as a staff member on July 1, 1971. - Promoted to a professional position in 1983. - Promoted to grade A11 in 1987 after appealing her job grade; still held grade A11 in 1995. - From July 1985 to October 31, 1995, worked in Department No. I. - Position abolished effective May 1, 1995 after merger of two Departments. - Efforts made over a six-month period to find alternative employment. - Assigned to a Temporary Assignment Position (TAP) in Department No. II for initial period of 10 months from January 2, 1996 through October 31, 1996; TAP later extended for four months through the end of February 1997. - Selection for TAP suspended the 120-day notice period and separation leave provided under the separation policy. - On August 28, 1996, Director of Administration issued memorandum announcing guidelines for ad hoc discrimination review procedure. - Applicant requested a review on September 30, 1996 alleging discrimination based on profession, gender and age affecting grading and abolition of her post. - On December 23, 1996, Applicant was informed she was not eligible to participate in the review process as she would shortly be separating on early retirement. - Applicant filed a formal grievance with the Grievance Committee on June 23, 1997 contesting eligibility decision. - On June 27, 1997, Director of Administration reversed the prior decision and directed that a review be carried out. - Review conducted by an ad hoc review team (an outside consultant and a senior official of the Administration Department); team met with Applicant on several occasions and concluded there was no evidence supporting discrimination claims and recommended no regrading. *Administrative Tribunal of the International Monetary Fund* ### 13. Applicant was informed of that conclusion in a meeting with the ### imfat-1 - 13. Applicant was informed of that conclusion in a meeting with the ### Chronology of Applicant's administrative steps and correspondence - Meeting with the review team on December 19, 1997, when Applicant was informed of the conclusion that age or gender had not affected her grade and was advised to request an administrative review if dissatisfied. - Letter from Applicant's counsel requesting an administrative review by the Director of Administration dated January 27, 1998. - Director of Administration's reply dated February 10, 1998 explaining the basis for the conclusion, offering Applicant an opportunity to meet again with the review team to raise new facts or arguments; Applicant did not accept that offer. - Counsel for Applicant wrote again to the Director of Administration on March 24, 1998, challenging the nature of the process and repeating the request for an administrative review. - Director of Administration wrote on May 8, 1998 advising she had carefully reviewed the investigation and fully concurred with the review team's recommendation. - Applicant filed a complaint with the Tribunal on August 7, 1998. ### Design, scope, and procedures of the Ad Hoc Discrimination Review Process - The Ad Hoc Discrimination Review Process resulted from the report of the Consultant on Discrimination issued in early 1996. - Memorandum from the Managing Director to Members of the Staff, February 9, 1996, "The Report of the Consultant on Discrimination" set out proposals including appointing an independent panel to examine discrimination claims confidentially. - Memorandum from the Managing Director to Members of the Staff, July 26, 1996, "Measures to Promote Staff Diversity and Address Discrimination" emphasized addressing past discrimination and acting within the existing framework of procedures. - Procedures for a one-time, ad hoc review were announced August 28, 1996 (Memorandum from the Director of Administration to Members of the Staff, "Review of Individual Discrimination Cases"). - Identification avenues for cases included: staff self-identification, cases from the Consultant study, and cases from systematic review by the Senior Review Committee, the Review Committee, and the Administrative Assistant Review Committee; Department Heads, Senior Personnel Managers, Administrative Officers, and the Diversity Advisor were invited to submit names by September 30, 1996. - Applicant self-identified by e-mail asserting adverse effect on career by "profession-, gender-, and age-based discrimination" with a background note attached. - The ad hoc review was explicitly described as a "one-time" review concluding September 30, 1996. - August 28, 1996 memorandum: the review process would depend on circumstances, draw on input from subordinates, peers, and supervisors, review the career record, possibly meet the employee, and where warranted suggest prospective remedial actions including "assignments, mobility, training, promotions, and salary adjustments." - The Memorandum stated: "The consideration being given to individual cases of possible discrimination is a one-time action and is not intended to replace or replicate the Fund's grievance procedures." - January 13, 1997 communication (Memorandum from the Director of Administration, "Procedures for Review of Individual Discrimination Cases") specified that external consultants assisted by a small number of Fund staff would carry out reviews, working in pairs, meeting individuals and others familiar with circumstances, and recommending forward-looking remedies within existing personnel policies; initial meetings to obtain background information would be initiated in the second half of January. - In Applicant's case the review team consisted of the Assistant Director of Administration and an outside consultant and concluded "no evidence of discrimination either in the Applicant's grade or in the abolition of the position which she held." ### Fund's threshold admissibility arguments (Motion to Dismiss) - The Fund requests the Tribunal to rule the case irreceivable on the ground that Applicant failed to exhaust administrative remedies as required by the Statute, arguing that failure would "undermine the fundamental function of the Tribunal ... as a forum of last resort." - Specific propositions advanced by the Fund: - By failing to pursue her challenge before the Grievance Committee in accordance with established procedures, Applicant failed to meet Article V, Section 1 of the Statute requiring exhaustion of all available channels of review. - The May 8, 1998 letter from the Director of Administration cannot be considered a final individual decision for purposes of exhaustion because, under the Statute, exhaustion is satisfied by one of three events: (a) if a recommendation is made to the Managing Director and the applicant has received no decision granting relief within three months; (b) if the applicant receives notice of a decision denying the request; or (c) if the applicant received notice of a decision granting the relief requested, but the relief has not been received within two months. - A Grievance Committee exists to consider individual complaints regarding application of personnel regulations and conditions of service, with jurisdiction over challenges to discretionary and non-discretionary decisions; Applicant did not appeal the ad hoc review team's decision to the Grievance Committee and therefore did not exhaust administrative review under GAO No. 31, Rev. 3, Sections 7.08 and 7.09. - Applicant satisfied exhaustion requirements for submission to the Grievance Committee under GAO No. 31, Rev. 3, Sec. 6.05 by appealing to the Director of Administration, but did not satisfy distinct exhaustion requirements for admissibility before the Tribunal under Article V of the Statute. - The decision Applicant challenged before the Grievance Committee in June 1997 is distinct from the decision Applicant seeks to challenge before the Tribunal; the 1997 grievance requested reversal of the decision not to include her case in the ad hoc review and that request was granted; the current challenge targets the ad hoc review's finding of no discrimination, a different decision that was not before the Grievance Committee. - The ad hoc discrimination review exercise was "a special one-time discrimination review" that did not alter existing rules or entitlements governing the Fund's grievance procedures; the Director of Administration reiterated this in her February 10, 1998 letter. - It is a well-established rule of law that staff members must follow rules and procedures for bringing complaints and appeals and must strictly comply with them. - The Director of Administration, after review, concurred with the review team's findings under GAO No. 31, Rev. 3, Section 6.04, which provides for appeal to the Director of Administration for review of decisions concerning a staff member's career. - Applicant was aware of remedies under GAO No. 31, Rev. 3, and pursued appeal to the Director of Administration but did not proceed to the Grievance Committee; therefore she did not exhaust available channels required under the Statute and bypassed the mandatory step of pursuing her claim with the Grievance Committee. ### Applicant's contentions on admissibility and final decision - Applicant contends the May 8, 1998 letter from the Director of Administration should be considered a final individual decision and the effective end of the administrative process she had pursued for "a period far in excess of one year," which had not provided relief or verifiable evidence that the procedure was carried out. - Applicant refers to the July 26, 1996 Memorandum from the Managing Director ("Measures to Promote Staff Diversity and Address Discrimination") arguing that the Managing Director's statement—that "the onus is on us" and that corrective action should be brought to Management's attention—renders the grievance process secondary and that honest review and full relief to aggrieved participants were prioritized over exclusive reliance on grievance procedures. - Applicant asserts the cumulative correspondence culminating in the May 8, 1998 letter should be treated as a final decision appealable to the Tribunal. *Judgment No. 1998-1, IMF Administrative Tribunal Reports, Vol. I.* ### 25. The admissibility of claims is governed by Articles V and VI of the ### The admissibility of claims is governed by Articles V and VI of the Statute ### Articles V and VI — exhaustion of administrative review - Article V prescribes that an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review. - Where available channels include a procedure established by the Fund for complaints and grievances involving consistency with personnel regulations, administrative review is deemed exhausted when: - a. three months have elapsed since a recommendation on the matter has been made to the Managing Director and the applicant has not received a decision stating that the relief he requested would be granted; - b. a decision denying the relief requested has been notified to the applicant; or - c. two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - Where available channels do not include the procedure described in Section 2, administrative review is deemed exhausted when: - a. three months have elapsed since the request for review was made and no decision stating that the relief requested would be granted has been notified to the applicant; - b. a decision denying the relief requested has been notified to the applicant; or - c. two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - Article VI: an application challenging the legality of an individual decision shall not be admissible if filed more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision. ### Rationale and Commentary on exhaustion requirement - The exhaustion requirement reflects the tribunal's role as forum of last resort and allows the administration full opportunity to assess complaints and determine corrective measures. - The Commentary clarifies exhaustion outcomes: - Failure to receive a decision granting requested relief within three months after a recommendation to the Managing Director satisfies the requirement. - Receipt of a decision denying the request satisfies the requirement (a partial grant is treated as denial). - Receipt of a decision granting relief but no implementation after two months satisfies the requirement. - Agreement by the Fund and applicant to bypass administrative review treats all channels as exhausted. ### Grievance Committee jurisdiction and GAO No. 31 (Rev. 3) provisions - GAO No. 31, Rev. 3, Section 4 establishes the Grievance Committee's jurisdiction: - 4.01: jurisdiction to hear complaints by staff members contending they were adversely affected by a decision inconsistent with Fund regulations governing personnel and conditions of service. - 4.02: Committee may hear a case only after the grievant has exhausted applicable channels of administrative review set forth in Section 6, unless the Managing Director or designee agrees to direct submission. - 4.04: Committee decides whether it has jurisdiction. - Section 6 (Administrative Review) procedural time limits and steps: - 6.02.1 (work or career decisions): request in writing to Department Head; request must be submitted within six months after the challenged decision was made or communicated; Department Head has 15 days to respond. - 6.02.2 (decision taken directly by Department Head): appeal to Director of Administration within six months after the challenged decision was made or communicated. - 6.03 (staff benefits): request to division chief within three months after informed of intended application of the benefit; division chief has 15 days to respond. - 6.04 (appeal to Director of Administration): written request within 30 days after response from division chief or Department Head or after deadline for response has passed. - 6.05 (exhaustion for Committee filing): channels considered exhausted when staff member has received a response to written request or no response has been received within 15 days of its submission to the Director of Administration. - 6.06 (decisions by Managing Director or Director of Administration): staff member may file a grievance with the Committee within six months after the challenged decision was made or communicated. - 6.07: time limits require exhaustion of applicable channels within required time limits before submitting a grievance to the Committee. ### Application to ad hoc discrimination review and admissibility issues in the case - Central issue: whether the ad hoc discrimination review constituted an alternative channel of review (not involving the Grievance Committee) and thus whether exhaustion requirements were met. - Applicant's position: - The ad hoc discrimination review was informal and intended as an alternative, not a prerequisite, to Grievance Committee review. - The ad hoc review primarily provided relief to staff whose cases fell outside the Committee’s jurisdiction (e.g., time-barred). - Applicant contends Article V, Section 3(b) applies: exhaustion met by decision of the Director of Administration denying relief, allowing Tribunal filing. - Fund's position: - The Grievance Committee had jurisdiction to hear the case; the ad hoc review did not replicate or replace the grievance procedure. - Applicant did not appeal the ad hoc review to the Grievance Committee; therefore, Applicant did not exhaust all available channels of administrative review as required under GAO No. 31, Rev. 3, Sections 7.08 and 7.09. - Tribunal analysis points: - Determine which Article V category applies (Section 2 if Grievance Committee would have had jurisdiction; Section 3 otherwise). - If the Grievance Committee would have had jurisdiction, its prior review requirements must have been met for Article V, Section 2 to apply. - The Fund emphasized the ad hoc review did not confer new rights and contrasted the formal character of established procedures with the informal character of the ad hoc procedure, indicating the ad hoc review was not intended to replace formal grievance procedures. ### Admissibility outcome considerations - If the matter falls within the Grievance Committee’s jurisdiction and the Committee’s prior review requirements were not completed, Article V, Section 2 applies and the application may be inadmissible for failure to exhaust remedies. - If the matter falls outside the Committee’s jurisdiction or the ad hoc procedure is characterized as the only applicable channel, Article V, Section 3 outcomes and Article VI timing (three-month filing limit) govern admissibility. - Key procedural time thresholds to assess admissibility in any scenario: - three months (multiple Section 2 and 3 exhaustion benchmarks); - two months (non-implementation after grant); - six months (time limit for initial requests or appeals in specified situations); - 15 days (Department Head/division chief response period and 15-day benchmark for Director of Administration response); - 30 days (deadline for written request to Director of Administration following response or missed deadline); - three months (Article VI filing limit after exhaustion) — preserve exact phrasing: Article VI bars filing more than three months after exhaustion or, absent channels, after notification of decision. *IMF Administrative Tribunal Reports, Vol. I, Judgment No. 1998-1* ### 39. In order to assess the validity of the Fund's argument that after the ### JUDGMENT No. 1998-1 — Exhaustion of Administrative Remedies and Procedural Outcome; JUDGMENT No. 1999-1 — Introduction and Case Background ### Exhaustion of Remedies and Prior Review Requirements (Tribunal analysis) - The Fund's argument: after the decision of the Director of Administration sustaining the holding of no discrimination, Applicant could have come to the Grievance Committee. - Relevant internal law: GAO No. 31, Rev. 3 spells out prior review requirements for a grievance, including the hierarchy of officials a grievant must have approached and the time periods for each approach so as to exhaust prior review requirements and have a claim admitted to the Grievance Committee. (Sections referenced: 6.02, 6.03, 6.04, 6.05, and 6.06.) - Tribunal findings about the ad hoc review of Applicant's complaint: - The ad hoc review did not go through the steps outlined in Section 6.02, 6.03, 6.04 and 6.05 of the GAO. - The mandatory time periods for each of these steps had expired when the ad hoc review was undertaken. - The ad hoc review did not involve any of the supervisory officials mentioned in those provisions; instead it involved: - an outside consultant; and - an official of the Administration Department, both outside the hierarchy that constitutes the channel of review within the meaning of the GAO up to, but not including, the Director of Administration. - Because the Director of Administration’s decision was not a follow-up of the mandatory preceding steps, it should be considered as taken "directly" by the Director of Administration within the meaning of Section 6.06. ### Statutory Framework on Exhaustion (Tribunal interpretation) - Article V of the Statute governs exhaustion of remedies: - Paragraph 1: An Application may be filed with the Tribunal only after an Applicant has exhausted "all available channels of administrative review". - Paragraph 2: Treats established channels of administrative review including the Grievance Committee. - Paragraph 3: Treats channels of review that do not embrace such established channels; the ad hoc discrimination review procedure could illustrate the latter possibility but is not clearly so indicated. - Tribunal view on memoranda establishing the ad hoc procedure: - The memoranda could have been more explicit that the ad hoc discrimination review was not meant to be in lieu of recourse to the Grievance Committee. - Lack of clarity may have led Applicant to conclude that exhaustion of Grievance Committee channels was not required. - Nevertheless, the Tribunal holds that exhaustion of remedies provided by the Grievance Committee, where they exist, is statutorily required and the memoranda do not exclude that requirement. - Recourse to the Grievance Committee would produce a detailed factual and legal record useful to the Tribunal. ### Tribunal Holding and Order (Decision) - The Tribunal holds that Applicant has not exhausted the channels of administrative review as required by Article V of the Statute. - The Fund's Motion for Summary Dismissal is granted. - Given the singular circumstances, the Tribunal orders: - If the Grievance Committee, if seized, decides that it does not have jurisdiction over Applicant's claim, the Administrative Tribunal will reconsider the admissibility of that claim on the basis of the Application now before it. - Formal Decision listed by the Tribunal: - First: the Fund's Motion for Summary Dismissal is granted; - Second: the Administrative Tribunal will reconsider the Applicant's claim on the basis of the Application now before it in the event that the Grievance Committee, if seized, decides that it does not have jurisdiction over that claim. - Decision locale and date: Washington, D.C.; December 18, 1998. - Tribunal membership on decision: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge. Registrar: Philine R. Lachman. ### JUDGMENT No. 1999-1 — Introduction (case brought by Mr. "A" v. International Monetary Fund) - Proceedings dates: the Administrative Tribunal met on August 11 and 12, 1999 to adjudge the case brought by Mr. "A", a former contractual employee of the Fund. - Tribunal composition for the 1999 judgment: Judge Stephen M. Schwebel, President; Judges Nisuke Ando and Agustin Gordillo, Associate Judges. - Applicant’s principal contention: - Mr. "A" contends the Fund violated internal law and principles of international administrative law by engaging him as a contractual employee to perform functions of the same nature as staff, renewing his contract several times over a continuous period of nine years, then allowing his contract to expire. - Relief sought: installation as a member of the staff, retroactive to 1993, with all attendant rights and benefits. - Fund’s response: - Motion for Summary Dismissal contending the Tribunal lacks jurisdiction ratione personae and ratione materiae because the Statute limits access to members of the staff and to claims challenging decisions taken in the administration of the staff. - Applicant’s objection to jurisdictional defense: - Applicant argues that the Fund’s alleged illegal classification of him as a contractual employee, rather than as a member of the staff, should not determine whether the Tribunal has jurisdiction to decide that alleged illegality. ### Procedure under JUDGMENT No. 1999-1 (key procedural milestones and rules invoked) - Application filing and transmission: - Mr. "A" filed an Application on April 16 (1999). - Application was transmitted to the Respondent on April 19, 1999. - On April 22, 1999, pursuant to Rule XIV, para. 4, the Office of the Registrar issued a summary of the Application within the Fund. - Fund’s Motion for Summary Dismissal: - Filed May 18, 1999, under Rule XII seeking dismissal for lack of jurisdiction under Article II, para. 1 and para. 2 a, b, and c. - Motion transmitted to Applicant on May 19, 1999. - Applicant’s Objection filed June 18, 1999 (within the thirty-day period provided by Rule XII, para. 5). - Rule citations and effects: - Rule XII (Summary Dismissal) authorizes dismissal if an application is clearly inadmissible and suspends the period for answering the application while the motion is acted on. - Rule XIII, para. 1: oral proceedings are held only if necessary for disposition of the case; Tribunal decided on August 2, 1999 that oral proceedings requested by Applicant were not necessary. - Pursuant to Rule XII, para. 2, the present consideration is confined to jurisdictional issues; substantive aspects are considered only to the extent necessary for disposition of jurisdictional issues. ### Factual Background (key facts and dates) - Initial engagement: - Initially engaged as a consultant under the Technical Assistance Program for a two-year period commencing in January 1990. - Appointment letter stated: "You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter." - Appointment letter stated termination: "This appointment can be terminated by you or the Fund on one month's notice, or by mutual agreement." - The basic contract was renewed several times; apart from increases in remuneration, terms remained unchanged. - Contractual terms and benefits: - Contract provided that Applicant would keep the same working hours and accrue annual leave on the same basis as a regular staff member. - Entitlements on the same terms as regular staff: participation in the Fund's medical benefits plan; employer contributions to medical and group life insurance plans; eligibility for spouse and dependency allowances, travel allowance, and travel insurance coverage. - Remuneration was stated on the basis of annual gross salary; contract included proviso that the Fund would not reimburse Applicant for any national, state or other taxes arising in respect of his remuneration. - Assignments and evaluations: - Assigned to Department "1" until September 1993; duties included heading missions, administering technical assistance, and commenting on staff papers; Department "1" Director stated Applicant performed essentially the same work as regular staff Advisors. - Applicant alleges recruitment representations in December 1989 that conversion to regular staff was possible after the initial two-year period if work was satisfactory. - Applicant transferred to Department "2" in October 1993 and continued as a headquarters-based consultant until final contract expiration in February 1999; Department "2" supervisors stated his work was materially the same as regular staff and he was a "fully integrated member" of the Department. - Prospects and termination: - Prospective supervisory promotion discussed prior to 1993; by March 1998 Applicant was allegedly told the supervisory position would not be filled. - In August 1998 Applicant was allegedly informed the Fund intended to end his contractual employment. - Letter dated September 14, 1998 extended contract with notation: "this will be the final extension of your contract." - Final contract expired by its terms February 26, 1999. - Administrative review attempts: - On January 14, 1999 Applicant wrote to the Director of Administration invoking administrative review procedures and asked that the Fund "formally recognize my status as regular staff." - Director of Administration reply dated January 25, 1999 advised: - (1) the grievance procedures did not apply to contractual employees such as Applicant; and - (2) Applicant would be entitled to arbitration under the established procedure for dispute settlement for contractual employees, but the Fund would take the position that the decision not to extend his employment contract fell outside the scope of arbitration, which is limited to claims that the Fund has failed to meet an obligation under the contract itself. *Administrative Tribunal of the International Monetary Fund — Judgments and procedural record as cited in the Tribunal's decisions (December 18, 1998; August 12, 1999).* ### 18. Thereafter, on February 4, 1999, Applicant requested that the ### IMF Administrative Tribunal — Judgment No. 1999-1 (Case summary) ### Procedural history and standing issues - On February 4, 1999, Applicant requested that the Managing Director agree to submit the dispute directly to the Administrative Tribunal pursuant to Article V, para. 4 of the Statute; that request was denied on February 24, 1999. - On February 25, 1999, Applicant filed a submission with the Fund's Grievance Committee challenging the decision not to renew his contract and seeking conversion to regular staff. - On March 1, 1999, the Grievance Committee Chairman replied that recourse to the grievance procedures of GAO No. 31 are not available to contractual employees and that a decision not to extend a contractual employee's contract does not fall within the scope of the Fund's arbitration procedures. - Article V, para. 4 provides: "For purposes of this Statute, all channels of administrative review shall be deemed to have been exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal." - GAO No. 31, Section 7.01.1(i) limits the Grievance Committee's jurisdiction in terms almost identical to Art. II of the Statute of the Administrative Tribunal, defining "staff member" to include persons whose letter of appointment, whether regular or fixed-term, states that he or she shall be a member of the staff. ### Applicant's principal contentions (merits and relief sought) - The Fund's categorization of Applicant as a "contractual employee" is arbitrary and inconsistent with the actual nature of his work. - Termination of the employment relationship is contrary to the Fund's Employment Guidelines on staff appointments, which, Applicant contends, required classification as a regular staff member because: - the position supported the basic institutional mission of the Fund; - the basic skills required did not change dramatically over a short period of time; - there was a need for continuity among staff performing these tasks. - Principles of international administrative law prohibit classifying as an independent contractor an individual doing the work of an employee when the classification does not reflect the actual relationship. - The Fund repeatedly created and disappointed Applicant's expectations of continued employment, on which he relied to his detriment. - Equity considerations: expiration of the contractual appointment and loss of associated medical insurance imposes particular hardship on Applicant who must provide coverage for an ailing family member. - Relief sought by Applicant: - a) conversion of status to regular staff as of January 2, 1993; - b) "reinstatement" as a regular staff member with all attendant rights, privileges and benefits; - c) the right to seek another Fund position if reinstatement in Department "2" is refused; - d) severance pay "if no other position materializes"; - e) retroactive payment for long-term service annual leave days; - f) participation in the Fund's retirement program when he departs from the Fund; - g) such other relief as the Tribunal deems appropriate. - Jurisdictional arguments by Applicant: - The Fund's classification as contractual was an arbitrary administrative act and should not determine the Tribunal's jurisdiction. - If the Tribunal declines jurisdiction, Applicant will have no opportunity for review on the merits by any impartial adjudicatory body. - The doctrine of audi alteram partem (every disputant is entitled to be heard), incorporated into the Fund's internal law, requires Tribunal jurisdiction over Applicant's claim. ### Respondent's principal contentions (Motion for Summary Dismissal) - The Application is irreceivable because the Tribunal's jurisdiction ratione personae covers only "any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff" (Article II, para. 2.c.(i)); Applicant's letter of appointment provided that he would not be a member of the staff. - The Tribunal's jurisdiction is limited to challenges to decisions "taken in the administration of the staff of the Fund" (Article II, para. 2.a.) and does not extend to recruitment and selection decisions. - Article III provides that "The Tribunal shall not have any powers beyond those conferred under this Statute." - The remedy sought (retroactive appointment to a regular staff position) is not contemplated by the IMFAT Statute and would undermine the Fund's employment regime. - The dual employment scheme of contractual and regular staff exists for legitimate organizational reasons, providing flexibility in human resource deployment. - Applicant is bound by the terms of his contractual letter of appointment; the Fund must be able to rely on written and agreed employment contracts. - The Fund's Employment Guidelines are guidance for departments and Recruitment Division and do not create a legal entitlement to staff appointment. - Applicant's claim to be reclassified retroactively bypasses prerequisites for career appointment, including considerations of broad geographical recruitment. ### Analysis of categories of Fund employment and policy context - Three principal categories of Fund employment: staff appointments (regular and fixed-term), contractual appointments, and vendor arrangements. - Applicant's core complaint: though employed on a contractual basis, the nature and continuity of his work indicate he should have held a staff appointment of indefinite duration. - GAO No. 3, Rev. 6 (May 1, 1989) defines: - 3.01 Regular Appointments: "Regular appointments shall be appointments for an indefinite period. Persons holding such appointments shall be designated as regular staff members." - 3.02 Fixed-term Appointments: "Fixed-term appointments shall be appointments for a specified period of time. Persons holding fixed-term appointments shall be designated as fixed-term staff members." - 1989 Guidelines and the January 20, 1999 revised Policy on Categories of Employment distinguish staff from contractual appointments: - Staff positions: carry out basic institutional mission; require continuity; involve acting on behalf of the Fund or supervisory responsibilities. - Contractual positions: fill temporary needs, provide specialized skills the Fund lacks, or where skills are likely to change dramatically; continuity is not critical. - The Fund's Motion emphasizes that contractual employees: - face no geographical distribution constraints in recruitment; - are not subject to a competitive appointment process; - have greater compensation flexibility and are exempt from the staff salary structure; - are not subject to certain Fund N Rules restricting political activity and outside employment; - have recourse to arbitration procedures rather than the Grievance Committee and Administrative Tribunal. - Department "2" justification: Applicant provided technical assistance ("TA") functions as a contractual employee because the long-term need for these functions and particular specialities is uncertain; contractual appointments permit flexibility to adjust to changing TA demand. - The Fund acknowledges "anomalies in the current system of contractual employment" but argues systemic issues should be addressed through policy rather than individual litigation. - The 1999 revised Policy limits cumulative duration of contractual appointments to a four-year maximum and states functions expected to be needed for two years or more are normally to be performed by staff appointments, while maintaining flexibility for headquarters-based TA experts where circumstances may justify contractual hiring for more than two years. ### Tribunal jurisdiction ratione personae (opening consideration) - The Fund contends Applicant, as a former contractual employee, lacks standing before the Administrative Tribunal because he is not a "member of the staff" as defined in Article II. - The Tribunal's jurisdiction ratione personae is prescribed by Article II of the Statute. *Source: IMF Administrative Tribunal, Judgment No. 1999-1* ### 1. The Tribunal shall be competent to pass judgment upon any application: ### 1. The Tribunal shall be competent to pass judgment upon any application: ### Jurisdiction ratione personae - Article II, para. 2.c.(i) defines "member of the staff" as: - "(i) any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff;" - "(ii) any current or former assistant to an Executive Director; and" - "(iii) any successor in interest to a deceased member of the staff as defined in (i) or (ii) above to the extent that he is entitled to assert a right of such staff member against the Fund;" - The Tribunal must determine whether Applicant is a "person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff". (Art. II, para. 2.c.(i).) - Applicant's contract expressly provided: "You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter." - The Report of the Executive Board accompanying the Statute states: "Nor would persons employed under contract to the Fund have access to the tribunal." - Legislative history and commentary indicate the exclusion of contractual employees from the Tribunal's jurisdiction ratione personae was an intentional choice, reflecting that: - disputes with contractual employees are governed by contract terms and are likely of a different character than disputes with staff members; and - staff members' terms and conditions are fixed by generally applicable regulations. ### Jurisdiction ratione materiae - Article II limits subject-matter jurisdiction to challenges by a staff member to "the legality of an administrative act adversely affecting him". (Art. II, para. l.a.) - Article II, para. 2.a defines "administrative act" as: "any individual or regulatory decision taken in the administration of the staff of the Fund;" - The Executive Board commentary: the definition "is intended to encompass all decisions affecting the terms and conditions of employment at the Fund, whether related to a staff member's career, benefits, or other aspects of Fund appointment, including the staff regulations set forth in the N Rules." - The limitations ratione personae and ratione materiae are closely intertwined: - "Administrative acts" are restricted to those taken in the administration of the "staff"; - Fund actions with respect to contractuals are outside the scope of the Tribunal's jurisdiction ratione materiae; - the challenged administrative act must adversely affect the "member of the staff" bringing the challenge. (Art. II, para. 1.a.) - The Executive Board comment: "The statute would not allow unsuccessful candidates to the staff to bring claims before the tribunal." This supports the view that recruitment and staff appointments are generally not within the Tribunal's competence ratione materiae. ### Precedent and scope: D' Aoust and related decisions - In M. D' Aoust v. IMF, Judgment No. 1996-1 (April 2, 1996), the Tribunal considered jurisdiction over matters preliminary to hiring: - Although the applicant was not yet a staff member at the time of the challenged act (decision to offer a particular grade and salary), once he accepted the offer and became a staff member the grade and salary affected him as a member of the staff. - The Tribunal concluded: "since the offer and acceptance of a particular grade and salary thereupon and thereafter affected him as a member of the staff, the Tribunal is competent to adjudge his case." (Para. 10.) - D' Aoust indicates decisions taken preliminary to becoming a staff member may fall within the Tribunal's competence ratione materiae so long as the challenged act affects the individual in his capacity as a member of the staff. - Distinguishing fact: Applicant in the present case has never become a member of the Fund's staff. ### Tribunal as a tribunal of limited jurisdiction - Article III: "The Tribunal shall not have any powers beyond those conferred under this Statute ...." - Executive Board commentary: administrative tribunals have limited jurisdiction rather than general jurisdiction; they have competence only to the extent their statutes confer authority. - Article IV: "Any issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute." - Commentary: the Tribunal may determine its own competence within the terms of its statute, intended to "interpret but not expand" its authority. - Article III (third sentence) preserves powers of the Fund's organs: "Nothing in this Statute shall limit or modify the powers of the organs of the Fund under the Articles of Agreement, including the lawful exercise of their discretionary authority in the taking of individual or regulatory decisions, such as those establishing or amending the terms and conditions of employment with the Fund." - Commentary emphasizes the Tribunal must respect the mandate of legislative or executive organs to formulate employment policies appropriate to the needs and purposes of the organization. - Article XIX: "This Statute may be amended only by the Board of Governors of the Fund." - Commentary: the Board of Governors could amend or abrogate the statute after establishment, thereby limiting or altering the tribunal's judicial function for future cases. ### Central procedural question in the case - The principal issue: whether Applicant's allegation on the merits — that he was illegally classified as a contractual employee when he should have been hired as a member of the staff — requires the Tribunal to exercise jurisdiction even though jurisdiction ratione personae is limited to members of the staff and ratione materiae is limited to administrative acts in the administration of the staff. - Two procedural alternatives on the Motion for Summary Dismissal: - Enforce the express language of the contract and deny jurisdiction based on the IMFAT Statute and Applicant's letter of appointment; or - First examine the merits of Applicant's claim (that he should be accorded staff membership based on the nature and continuity of his work) and then decide whether, as a result of that examination, it may exercise jurisdiction ratione personae and ratione materiae despite the letter of appointment. - Applicant contends the Fund's allegedly illegal classification should not control the exercise of the Tribunal's jurisdiction and asks the Tribunal to recognize him as a "de facto" member of the staff. - Other international administrative tribunals have, in some circumstances, considered merits to decide jurisdiction. Example cited: Joel B. Justin v. The World Bank, WBAT Decision No. 15 (1984): "The question whether or not the Applicant holds a contract of employment with the Respondent and, therefore, is a staff member under Article II of the Statute can be decided only after a substantive consideration of the case ...." ### Key statutory and documentary quotations preserved exactly - "You will not be a staff member of the Fund and will not be eligible for any benefits other than those specified in this letter." - "Nor would persons employed under contract to the Fund have access to the tribunal." - Article II, para. 2.a: "the expression 'administrative act' shall mean any individual or regulatory decision taken in the administration of the staff of the Fund;" - Article III: "The Tribunal shall not have any powers beyond those conferred under this Statute .... " - Article IV: "Any issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute." - Article XIX: "This Statute may be amended only by the Board of Governors of the Fund." *IMF Administrative Tribunal Reports, Vol. I, Judgment No. 1999-1.* ### 64. The WBAT concluded after a detailed examination of the factual cir- ### The WBAT concluded after a detailed examination of the factual circumstances, principles of contract law, and the Bank's personnel practices that a contract with applicant had, in fact, been formed but that it later came to an end when he was officially informed that he was no longer eligible for the appointment. ### Overlap of jurisdictional questions and merits - The WBAT (Justin) examined the merits to determine jurisdiction and exercised jurisdiction despite applicant never actually becoming employed with the Bank. (Para. 39.) - ILOAT in In re Labarthe, ILOAT Judgment No. 307 (1977): the tribunal treated the jurisdictional question as congruent with the merits — "If the complainant does establish that he has such a contract, it is not disputed that in the circumstances of this case his claim must succeed. Thus, the issue between the parties on jurisdiction is also the issue between them on the merits, and it is convenient to deal with it under the latter head." (Para. 4.(d).) After factual examination the tribunal found a contract had existed and awarded compensation for its breach. ### Cases finding no contract or no staff status after merits examination - UNAT in Camargo v. The Secretary-General of the United Nations, UNAT Judgement No. 96 (1965): "The question whether or not the Applicant must be regarded as the holder of a contract of employment with the United Nations can therefore be decided only after a substantive consideration of the case, which it is incumbent on the Tribunal to carry out." (P. 87.) UNAT concluded the applicant had not made a valid acceptance and was not the holder of a contract of employment. (P. 88.) ### Cases denying jurisdiction based on contract language and statutory provisions - In re Privitera, ILOAT Judgment No. 75 (1964): applicant sought "restoration of his rights as a staff member" after notice that a third contract would not be offered. Tribunal observed applicant’s legal status was defined by his contract which stipulated "the present contract does not confer upon the holder the title of official of the World Health Organization" (para. 2.) and declined jurisdiction. - In re Darricades, ILOAT Judgment No. 67 (1962): tribunal applied UNESCO Staff Regulations/Rules; definition of "staff member" excluded persons engaged specifically for a conference or meeting. Applicant was "a purely casual employee" and not subject to tribunal jurisdiction. (Para. 1–2.) - In re Amezketa, ILOAT Judgment No. 1034 (1990): applicant’s periods under "special services agreements" were limited to rights in those agreements; disputes subject to arbitration; tribunal dismissed claims on the merits. ### Cases where tribunals looked behind contractual form to substantive relationship - Teixeira v. The Secretary-General of the United Nations, UNAT Judgment No. 233 (1978): jurisdiction had been established earlier (UNAT Judgment No. 230 (1977)) by party consent; on the merits UNAT rejected applicant’s attempt to claim legal status different from contractual status, noting applicant agreed to special service agreements for almost 10 years and expressly waived staff member status. Tribunal found the improper use of such agreements had been favorable to applicant and awarded a termination indemnity based on length of service and quality of work. (Para. II, VI, VIII, XI, XII.) - In re Bustos, ILOAT Judgment No. 701 (1985): despite express contract language calling relationship "a lease of work and not a relation of subordination", tribunal took broad view of jurisdiction and held that a continuous series of short-term contracts over eleven years formed a single contract of indefinite duration. Key holdings: - Jurisdiction does not depend upon staff membership; applicable principles of international civil service law may apply to any employee with more than a purely casual link. (Para. 1; citation of In re Chadsey (Judgement 122).) - Merits framed as whether relationship was a series of fixed-term contracts or a single indefinite contract; tribunal found mutual intention that complainant be employed "for as long as his services were required and he was willing to give them" and that law adds term of reasonable notice of termination. (Para. 6, 9.) - Awarded compensation but declined to order retroactive reinstatement or to reconstruct the contract retroactively. (Para. 11.) - Tribunal emphasized exceptional nature of looking behind written contracts and stated decision does not affect short-term appointments in general. (Para. 5, 10.) ### Additional tribunal practice recognizing long-term contractual service as staff service - Jorge O. Amara v. Asian Development Bank, ADBAT Decision No. 24 (1997): applicant worked under a series of contractual agreements from 1979 until appointment as regular staff member in 1993; upon mandatory retirement in 1995 he sought retirement and other benefits dating back to 1979; tribunal upheld his claims. ### Comparative observations and procedural themes - International administrative tribunals sometimes must examine the merits before or in order to decide jurisdiction; alternatively, tribunals have denied jurisdiction where contract language and statute clearly exclude staff status. - Some decisions reject claims that contractual employees possess rights beyond their agreements; others adopt a broad jurisdictional view and may treat prolonged or continuous contractual service as creating staff-like protections. - Remedies vary: awarded compensation for breach or termination indemnities; tribunals are generally reluctant to reconstruct contracts retroactively or order reinstatement where contracts have been expressed and acquiesced to by parties. *Judgment No. 1999-1, IMF Administrative Tribunal Reports, Vol. I* ### 83. Among the terms of Amara's contracts of employment were the fol- ### imfat-1 - 83. Among the terms of Amara's contracts of employment were the following provisions ### Case facts and tribunal outcome - Employment terms included: "Nothing contained in the terms and conditions herein ... shall be construed as establishing or creating any relationship other than that of independent contractor between the Bank and [him]." - Contract also stated: "[He] shall not be entitled to any compensation, allowances, benefits or rights from or against the Bank other than expressly provided therein ...." - The Administrative Tribunal of the Asian Development Bank (ADBAT) held that, on the facts, the applicant had been a staff member in regular employment of indefinite duration since 1979 and could not be excluded from the benefits of staff membership. The ADBAT declared the above contractual clauses "inoperative". (Para. 44.) - The Tribunal concluded that the applicant held a regular appointment of indefinite duration and therefore was covered by the Staff Regulations. (Paras. 41–45.) - The Tribunal expressed that the applicant had an unbroken term of almost 14 years with successive extensions and renewals, supporting the view that employment was intended to be of indefinite duration. (Para. 41.) ### Legal reasoning on employment status and contract form - The Tribunal emphasized that contracts may be set aside where they "fundamentally disregard reality" and that the Memoranda of Agreement did not reflect the true relationship between the Bank and the applicant. (Paras. 22–23.) - Factors demonstrating staff-member status included: - Not engaged to perform a specified piece of work for a stipulated fee under his own responsibility and methods. - Required to work on the Bank's premises under the direction of Bank officers and in accordance with Bank instructions. - Paid a regular, stated monthly remuneration and received increments mid-way through several contracts. - Worked full-time according to the Bank's working hours, could be required to work overtime or on shifts, and was entitled to annual, medical and casual leave. - Obligations included refraining from active political activity. - Not carrying on an independent business and not able to assign performance of work to others; work was part of or ancillary to the Bank's business. (Paras. 31–32.) - The Tribunal held that recourse to successive short-term contracts for jobs essentially of a permanent nature is not a fair employment practice unless there is clear functional justification and limits based on norms of good administration. (Para. 27.) ### Jurisdictional analysis and limits - The Tribunal observed that by the time the applicant filed his application he had acquired status as a regular staff member by virtue of a new appointment in 1993, so ratione personae arguably was not in serious dispute. (Para. 85.) - The Tribunal placed its holding on jurisdiction after its merits conclusions and noted possible implications for expansive ratione materiae jurisdiction. (Para. 85.) - The Tribunal found that it lacked jurisdiction in a separate matter under the IMFAT Statute where the contract explicitly denied staff membership and the Statute grants jurisdiction only over complaints by a "member of the staff" challenging a "decision taken in the administration of the staff" (Article II, 2.c.(i)). (Paras. 45, 86.) - The Tribunal rejected the argument that the risk of leaving an applicant without judicial review required it to exercise jurisdiction; international administrative tribunals are courts of limited jurisdiction and cannot extend jurisdiction on equitable grounds. (Paras. 70–71 cited; Paras. 95–96.) - The Tribunal contrasted Shkukani (UNRWA/UNAT) and Darricades (ILOAT) jurisprudence: - Shkukani: UNAT interpreted its statute to afford redress where differing staff categories lacked comparable judicial procedure; advisory ICJ opinion cited on admissibility of disputes between officials and international organizations. (Paras. 88–91.) - Darricades: ILOAT refused to exercise jurisdiction despite potential denial of judicial redress, emphasizing limited jurisdiction. (Para. 91.) ### Role of audi alteram partem and Article III - Article III of the IMFAT Statute requires application of "the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts." (Article III quoted.) - The Tribunal held that the principle of audi alteram partem supplies a standard for judging legality of administrative acts that come before the Tribunal but does not itself confer jurisdiction or determine which decisions are justiciable. The second sentence of Article III prescribes applicable law, not jurisdiction. (Paras. 92–96.) - The Tribunal noted that audi alteram partem has been applied in adjudicating procedural fairness issues (e.g., Ms. "C" v. IMF, Judgment No. 1997-1). (Para. 94.) ### Institutional concern and policy response - The Tribunal expressed disquiet that practices leaving Fund employees without judicial recourse are inconsistent with norms of international governmental organizations and recommended that the Fund's policy-making organs consider providing contractual employees with appropriate avenues of judicial or arbitral resolution, especially for disputes over whether functions meet criteria for staff appointment versus contractual status. (Para. 97.) - The Fund's Executive Board approved a Policy on Categories of Employment on January 20, 1999, providing in part: - "Functions that are needed for two years or more would be performed by employees on staff appointments. Functions that are expected to be performed for less than two years would be performed by contractual employees." - "Contractual appointments are used only for short-term employment, and can be extended if needed to a maximum cumulative period of four years. Extensions beyond two years require the approval of the Director of Administration." - The 1999 Policy mirrors a 1989 Policy but adds the two-year and four-year limitations that the 1989 Policy did not prescribe. (Para. 98.) *Source: IMF Administrative Tribunal Reports, Judgment No. 1999-1 (IMFAT).* ### 99. Had the foregoing Policy been in force and implemented in the course ### Had the foregoing Policy been in force and implemented ### Factual background and procedural history - The Administrative Tribunal of the International Monetary Fund met on August 11, 12 and 13, 1999, composed of Judge Stephen M. Schwebel (President), and Judges Nisuke Ando and Agustin Gordillo (Associate Judges). - Applicant Mr. "V" is a former staff member who began employment with the Fund in 1969 and received promotions in 1979 and 1986. - Disputes arose regarding Mr. "V"'s performance and its evaluation, notably in Annual Performance Reports. - In May 1996 Mr. "V" and the Fund entered into a Retirement Agreement providing for early retirement effective November 30, 1998, and settling all claims arising up to May 9, 1996. - The Fund produced a 1996 Report of the Separation Benefits Fund ("SBF Report") describing disbursements from the SBF, identifying characteristics of recipients (but not names), and stating reasons for separation; the Report was transmitted to Fund Management, the Personnel Committee, the Ombudsperson, and the Chairman of the Staff Association Committee. - Mr. "V" alleges the 1996 SBF Report included an entry pertaining to him (not identifying him by name) listing the reason for separation as: "Performance. Unable to produce work that met department standards. Retired," and that copies became available in the Staff Association office. - Mr. "V" alleges that preparation and distribution of the Report violated GAO No. 35 (Information Security) and other Fund rules and regulations. - Application filed October 9, 1998; Application transmitted to Respondent on December 4, 1998. The Fund's Answer filed January 19, 1999. Applicant's Reply filed February 19, 1999. Fund's Rejoinder filed April 16, 1999. - The Tribunal denied Applicant's request for oral proceedings on April 14, 1999. - The President of the Tribunal called for additional written statements on April 27, 1999; Applicant’s request for document production was denied by the President on July 12, 1999, as the documents were held irrelevant. ### Retirement Agreement terms (as stated in the Agreement) - The Agreement provides that early retirement from the Fund staff becomes effective November 30, 1998. - Specific provisions include: - 1. Applicant will remain in the [] Department until May 9, 1997, and continue to receive regular assignments from [] Department supervisors during this period. - 2. While on separation leave from May 12, 1997 through early retirement effective November 30, 1998, Applicant will be allocated an office in International Square, a computer, and a telephone, and will have access to a fax and photocopy machines. - 3. The originals of Applicant's performance reports for 1992 and 1994 will be held under seal in the Administration Department and will not be subject to review by any person other than the Director of Administration and the General Counsel, acting jointly, except that this undertaking will not govern if (i) Applicant seeks to reopen issues relating to performance in the [ ] Department, internal or external to the Fund, or (ii) in the opinion of the Director of Administration Applicant makes disparaging statements about the integrity or competence of any member of the Fund's staff. All copies of the 1992 and 1994 performance reports will be destroyed within ten days from the signing of the separation agreement. - 4. The performance rating of [] allocated to Applicant in 1992 and 1994 will be removed from the Fund's personnel data base. - 5. No performance reports will be prepared for Applicant for 1995 and 1996. - 6. On May 1, 1996 and May 1, 1997, Applicant will receive a merit pay increase equivalent to the maximum of the range of possible merit increases associated with a '2' rating and Applicant's salary quartile. ### Tribunal's findings and legal conclusions - The Tribunal observed that adoption of the revised Policy on Categories of Employment (1999 Policy) strengthens the equitable basis of some of Mr. fl A"'s contentions and that the Fund should endeavor to respond insofar as governing regulations and practical possibilities permit; Mr. fl A" has maintenance of group medical coverage for eighteen months after the expiration of his contract without financial contribution by the Fund. - On the basis of the considerations set forth, the Tribunal decided: 1. The Administrative Tribunal does not have jurisdiction to decide whether the Fund acted illegally when it entered into a series of contracts for contractual employment of the Applicant, allegedly in violation of its 1989 Employment Guidelines and principles of international administrative law, because Applicant apparently performed the same work as regular staff under contracts renewed several times in the course of nine years and then allowed to expire. 2. The Administrative Tribunal does not have jurisdiction ratione persona over Applicant's complaint since his letter of appointment stated that he "will not be a staff member of the Fund" and the Administrative Tribunal's jurisdiction is restricted by its Statute to applications brought by a "member of the staff" (Art. II, para. 1.a.), defined as "any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff" (Art. II, para. 2.c.(i)). 3. The Administrative Tribunal does not have jurisdiction ratione materia over Applicant's claim; the Fund's decision to enter into a contract or series of contracts with an individual to serve as a contractual employee, rather than as a member of the staff, is not a "decision taken in the administration of the staff" (Art. II, para. 2.a.). 4. Equitable or other considerations do not enable the Administrative Tribunal to extend its jurisdiction to claims falling outside the express language of Article II of its Statute, when Articles III, IV, and XIX limit its powers to those conferred by the Statute. 5. The Administrative Tribunal is not entitled to exercise jurisdiction in this case because otherwise Applicant's complaint may escape examination by an impartial adjudicatory body. The principle of audi alteram partem does not authorize or require the Administrative Tribunal to exercise jurisdiction in this case. 6. The Administrative Tribunal need not examine the merits of Applicant's claim in order to decide whether it has jurisdiction in this case. It may base that decision on the language of Applicant's letter of appointment and the Statutory provisions governing jurisdiction. ### Decision and disposition - For these reasons, the Administrative Tribunal of the International Monetary Fund unanimously decides that the Fund's Motion for Summary Dismissal is granted. - The decision was rendered in Washington, D.C., on August 12, 1999, by Stephen M. Schwebel (President), Nisuke Ando (Associate Judge), and Agustin Gordillo (Associate Judge); Celia Goldman served as Acting Registrar. *Administrative Tribunal of the International Monetary Fund, Judgment Nos. 1999-1 and 1999-2 (August 12–13, 1999).* ### 7. In consideration of the above, any and all causes of action, demands ### 7. In consideration of the above, any and all causes of action, demands ### Settlement, release, and confidentiality (paragraphs 7–10) - Applicant agreed that "any and all causes of action, demands and claims, of every nature, known or unknown, which you may have as of the date of this agreement against the Fund or any of its officials or former officials are hereby settled." - Applicant agreed, on behalf of himself and his successors and assignees, that he "shall not institute, prosecute, assert or voluntarily aid in the institution, prosecution, or assertion of any claim, suit, appeal or action, within or outside the Fund, against the Fund or any of its officials or former officials by virtue or arising out of any matter whatever up to the date hereof." - "The above terms and conditions shall remain confidential and shall not be disclosed by you, either during or after your employment with the Fund." - "The Ombudsperson will, if required, help ensure compliance with this agreement." - Applicant was asked to indicate agreement "by signing and returning to me a copy of this memorandum." ### Negotiation history and conclusion of the Retirement Agreement (paragraphs 11–15) - Negotiations between Applicant and the Fund spanned at least five years prior to conclusion; Assistant Director of the Administration Department testified involvement "for at least five years" before the Agreement was concluded in May 1996. - Applicant testified that negotiation of the actual Agreement began in December 1995. - Negotiations addressed: amount of retroactive salary increases for 1992 and 1994; length of period of salary continuation; length of time Applicant would remain in his department; location of office space after he concluded departmental work; preparation of a "To Whom It May Concern" letter regarding absence of performance reports for 1992, 1994, 1995, and 1996. - Applicant proposed "expungement" of portions of the 1992 and 1994 APRs, seeking notation that evaluations were "seriously flawed" rather than "disputed"; these proposals were rejected. - Final agreement provided that originals of the 1992 and 1994 performance reports would be "kept under seal in the Administration Department", all copies would be destroyed, and the performance ratings for those years would be removed from the Fund's personnel data base. - Applicant, through counsel, proposed adding the sentence: "The assessment of your performance for 1992 and 1994 shall not be referred to or communicated, orally or in writing, to anyone except as provided in this paragraph." This proposal was rejected and is not in the final Agreement. - Timeline of signed documents: - By April 30, 1996, Applicant signed a standard letter confirming separation arrangements. - May 2, 1996: Applicant signed a document similar to the final Retirement Agreement but not including paragraphs 7 and 8; Fund states the May 2 agreement did not take effect because management approval was lacking. - May 3, 1996: Applicant filed a grievance seeking reconsideration of his 1994 Annual Performance Report (APR). - May 7, 1996: A new Agreement (adding paragraphs 7 and 8) was drafted and issued by the Deputy Director of Administration. - May 9, 1996: Applicant signed the Agreement releasing the Fund from all pre-existing claims and providing for confidentiality. - May 10, 1996: Applicant withdrew his request for review of the 1994 APR. ### Implementation actions by the Fund (paragraphs 16–17) - May 17, 1996: Assistant Director of Administration notified Mr. "V" that, pursuant to the Retirement Agreement: - the originals of the 1992 and 1994 performance reports had been sealed; - all copies had been destroyed; - the numerical ratings for those years had been removed from the personnel data base. - Applicant did not dispute that these actions were taken. - A "To Whom It May Concern" letter dated April 26, 1996, was issued by the Assistant Director of Administration stating: "The unavailability of a completed performance report for 1992, 1994, 1995 and 1996 does not in any way reflect adversely on Mr. [ "V"]'s performance during those years or on his career." - The issuance of the April 26, 1996 letter was not provided for by the terms of the Retirement Agreement but was negotiated collaterally with that Agreement. ### Separation Benefits Fund (SBF): regulatory basis and 1996 SBF Report (paragraphs 18–24) - Regulatory basis: GAO No. 16, Rev. 5 (Separation of Staff Member) provides for mandatory and discretionary use of the Separation Benefits Fund. - GAO No. 16 excerpts cited: - Section 4.06: Mandatory SBF payment equal to "one and one-fourth months' salary for each year of service, subject to a maximum that is the smaller of: (a) the equivalent of 22-1/2 months' salary; and (b) the amount of salary that would otherwise have been payable to the staff member between the last day on duty and his mandatory retirement age of 65." Salary rate used is the last day on duty; length of service computed to the nearest full month served. - Section 4.07: Director of Administration may offer discretionary payments "to facilitate separation" up to the maximum set out in Section 4.06. - SBF discretionary payments may be awarded "to facilitate separation" and are distinct from automatic separation payments; Applicant's benefits were afforded under the discretionary provision. - In 1995 the Administration Department adopted a policy of preparing and circulating an annual SBF Report to the Fund's Personnel Committee and specified senior officials to promote transparency. - The 1996 SBF Report: - Marked "STRICTLY CONFIDENTIAL." - Consisted of a memorandum from the Director of Administration to the Deputy Managing Director summarizing SBF use for the year and policies governing use. - Included a table listing each SBF disbursement with recipient characteristics: nationality; age at separation; department; grade; date of entry on duty; years of service; type of SBF; SBF months; effective date; and reasons for separation. - Included an analysis table of distribution of SBF funds by grade, nationality, age, length of service, and similar categories. - Documented a total of "twenty cases" in 1996 encompassing both mandatory and discretionary uses of SBF funds. - Four cases, including Applicant's, are designated as performance related. - The Report states: "Performance Problem: SBF resources for performance related problems are used only where such problems have been fully documented, where other remedies have failed and where separation is clearly in the best interest of the institution. Use of SBF on the grounds of performance was made for four staff members in FY 1996." - Applicant's entry, "Case No. 10," lists the reason for separation: "Performance. Unable to produce work that met department's standards. Retired." Unlike Case No. 4, no notation of Applicant's numerical performance ratings was made. - Assistant Director of Administration who negotiated Applicant's separation supplied the reason for Applicant's separation in the 1996 SBF Report and acknowledged awareness of the terms of the Retirement Agreement prior to drafting that conclusion. - Consistent with reporting policy, Applicant's name was not included in the Report copies circulated, except as required in the copy to the Deputy Managing Director, but the entry was identifiable by nationality, departmental affiliation and age. - Starting with the 1997 SBF Report, in the interest of confidentiality, annual SBF Reports no longer reveal nationalities of SBF recipients. - The 1996 SBF Report was transmitted to a total of "thirty individuals": the Managing Director, Deputy Managing Directors, Senior Personnel Managers, the Ombudsperson and the Chairman of the Staff Association Committee. - Applicant discovered copies of the 1996 SBF Report in August 1997 on an information desk in the Office of the Staff Association Committee. ### Information security classification and access rules (paragraph 25) - GAO No. 35 sets forth four information classification levels: NOT FOR PUBLIC USE; CONFIDENTIAL; STRICTLY CONFIDENTIAL; and SECRET. The 1996 SBF Report was classified and labeled "STRICTLY CONFIDENTIAL." - GAO No. 35 defines STRICTLY CONFIDENTIAL to include: - information entrusted to the Fund on a confidential basis not adequately protected by CONFIDENTIAL; - information generated by the Fund, including staff views on policy or country issues, or information pertaining to discussions between the Fund and its members, the unauthorized disclosure of which would likely cause embarrassment or difficulties for the Fund or one or more of its members and/or compromise Fund or members' objectives or operations; - information involving matters of strict personal privacy (e.g. medical and financial information related to benefit entitlements); - other information for which it is judged necessary to restrict access only to those who have a specific need to know the information. - Access rule for STRICTLY CONFIDENTIAL: "access shall be limited to those having a specific need to know the information, as determined by the originating office or by those having authority for clearance, in consultation with the originating office." (Section 4.02.3) - Section 7 of GAO No. 35 requires persons in possession of such information to safeguard them in accordance with: (i) the Rules and Regulations of the International Monetary Fund (specifically Rules N4, N8, N6 and N11), (ii) the provisions of this Order and standards, procedures and guidelines issued pursuant to this Order, and (iii) the agreements, arrangements or understandings under which the information or records were provided. ### Applicant's efforts to secure alternative employment (paragraphs 26–28) - Applicant testified that after conclusion of the Retirement Agreement in May 1996 he made a number of efforts to secure alternative employment "all to no avail." - Autumn 1996: Applicant sought assistance of the Assistant Director of Administration for a senior position at another international organization. - A general employment background letter was provided summarizing Applicant's employment history with the Fund and matters on which he had worked; the letter was transmitted to an official of the organization. - Applicant had sought a reference from the Managing Director or his former department, but an institutional decision was made that the letter should come from the Administration Department given the circumstances of his separation. - Senior Personnel Manager of Applicant's former department testified willingness to provide positive references if approached by prospective employers, but none had approached him. - Assistant Director of Administration testified that the personnel director of the other organization told him Applicant's prospects "were not good" due to other candidates with relevant background. - Applicant testified that a very senior official of the organization told him he was the "top candidate." - Testimony indicates the Managing Director personally and verbally recommended Mr. "V" to the Director-General of the organization concerned. - Applicant speculated he was not selected because the organization's personnel director was a former Fund staff member who "may have been aware of his performance ratings." *IMF Administrative Tribunal Reports, Vol. I, Judgment No. 1999-2* ### 29. Applicant also testified that he has had difficulty getting interviews ### imfat-1 - 29. Applicant also testified that he has had difficulty getting interviews ### Applicant's allegations and claimed harms - Applicant testified he has had difficulty getting interviews and finding out about positions that are not advertised. - Applicant contends persons in a potential employer organization referred to his difficulties with his department chief at the Fund. - Applicant claims that when interviewers inquire about the circumstances that led to his resignation, he is "put into a situation of having to fend off conflicting official records" on account of the information about him included in the 1996 SBF Report. - Applicant alleged that, subsequent to his separation from the Fund at the end of November 1998, he was denied a consulting opportunity with one of the Fund's departments. (para. 29) ### Applicant's principal contentions (summary) - The Administration Department violated the terms and conditions of the Retirement Agreement by including information inconsistent with Applicant's record or with information it agreed to seal and keep confidential, damaging Applicant's reputation and career. (para. 30) - Sealed documents formed the basis for the information included in the SBF Report; "sealing" refers to both the physical document and its contents; the Fund agreed to "cleanse" Applicant's record. (para. 31) - Circulation of the information through the 1996 SBF Report was at least grossly negligent, if not intentional; Administration Department knowledge of reporting requirements demonstrates at least bad faith, if not fraud, in negotiating with Applicant. (para. 32) - Distribution of the Report damaged Applicant's reputation within the Fund and created conflicting official records, impairing ability to obtain supportive references externally. (para. 33) - An internal Administration Department policy unknown to staff does not excuse failure to perform obligations under an independently negotiated agreement; publishing the Report was arbitrary and capricious even absent the Agreement. (para. 34) - Circulation of the Report violated GAO No. 35, Section 7.02(iii) and the N Rules (Staff Regulations); the Fund breached guidelines for the scope and content of the Report. (para. 35) - The dispute concerned a defined contractual relationship, not administrative discretion, placing it outside the Grievance Committee's jurisdiction; GAO No. 31, Section 5 improperly disapplies other law. (para. 36) - Article X, Section 3 of the Tribunal's Statute prohibits the Fund's Legal Department from representing the Fund before the Administrative Tribunal. (para. 37) - Applicant seeks remedies including: rescission of the Managing Director's decision accepting the Grievance Committee recommendation; rescission, annulment and expungement of the Grievance Committee Recommendation and Report; declaration that certain provisions of GAO No. 31 are illegal; an order directing the Fund to comply with Retirement Agreement commitments; "recall" and redaction of the 1996 SBF Report comments pertaining to Applicant; conversion of leave of absence to leave with pay and extension to November 30, 1999 (or reinstatement to pre-May 1997 position); rescission of Applicant's undated resignation notice; compensation of three times Applicant's annual gross pay, with interest; and costs and attorneys' fees. (para. 38) ### Respondent's principal contentions (summary) - Preparation and limited circulation of the 1996 SBF Report did not violate any duty owed to Applicant under the Retirement Agreement or Fund rules. (para. 39) - The Fund did not agree to total secrecy regarding Applicant's performance or reasons SBF funds were expended; Paragraph 8 of the Retirement Agreement applied only to Applicant, not the Fund. (para. 40) - The Fund rejected Applicant's proposed expungement language because it would have amounted to an obligation of secrecy; it agreed to narrower constraints consistent with institutional needs. (para. 41) - The SBF Report reference to Applicant's performance problems arose from the Assistant Director of Administration's own knowledge, not unauthorized access to sealed APRs. (para. 42) - Circulation to the Personnel Committee, Chairman of the Staff Association and the Ombudsperson was intended to enhance SBF policy credibility and ensure uniform application; information about age, nationality, grade, and department was relevant to transparency and accountability. (para. 43) - GAO No. 35, Section 4.02.3 expressly authorizes access to documents classified "Strictly Confidential" by those "having a specific need to know the information, as determined by the originating office ...." (para. 44) - If copies were left on the Staff Association Office table, the Staff Association acted inconsistently with the "Strictly Confidential" designation, but the Fund is not responsible for the Staff Association's actions. (para. 45) - Applicant has not established a nexus between circulation of the SBF Report and harm to his subsequent employment prospects or reputation; the alleged improper interference with a proposed consultancy after separation on November 30, 1998, is not properly before the Tribunal. (para. 46) - Article X, Section 3 of the Tribunal's Statute does not prohibit the Fund's Legal Department from representing the Fund before the Administrative Tribunal. (para. 47) - The Grievance Committee was competent to determine whether the Fund breached the Retirement Agreement. (para. 48) - The Fund seeks reasonable attorneys' fees for costs before the Grievance Committee in respect of allegedly frivolous claims. (para. 49) ### Tribunal consideration and findings (key points) - Core issue: whether the Fund breached the Retirement Agreement by disseminating in the 1996 SBF Report information that reflected adversely on Applicant's performance, specifically the entry that Applicant was "[u]nable to produce work that met department's standards." (para. 50) - Applicant bases argument on three provisions of the Agreement: - sealing of 1992 and 1994 performance reports and destruction of all copies (paragraph 3); (para. 50) - removal of the 1992 and 1994 ratings from the "personnel data base" (paragraph 4); (para. 50) - the confidentiality clause (paragraph 8); (para. 50) - Tribunal accepts that originals of 1992 and 1994 performance reports were placed under seal and all copies destroyed as required by paragraph 3. (para. 53) - Applicant's contention that "sealing" extends to information/content is noted, and Applicant asserts sealed documents must have formed the basis for the SBF Report entry because SBF policy requires documentation of performance problems. (para. 53) - Fund's position: the SBF Report information was supplied independently of sealed APRs; the Assistant Director of Administration relied on his own knowledge when preparing the Report entry. (para. 54) - Tribunal analysis of "seal": sealing means to close by fastening that must be broken before access; paragraph 3's procedure limiting review to Director of Administration and General Counsel is consistent with that definition. (para. 55) - Tribunal concludes paragraph 3 did not prohibit the Assistant Director of Administration from preparing an SBF Report entry based on his knowledge of Applicant's case; the Fund complied with paragraph 3's express requirements and rejected Applicant's expungement requests. (para. 56) - Paragraph 4 requires removal of the 1992 and 1994 performance ratings from the Fund's personnel data base; Applicant was informed on May 17, 1996, that numerical ratings had been "deleted from the personnel data base" and copies deleted from the APR database and other known copies destroyed. (paras. 57–58) - Applicant did not dispute the actions under paragraph 4 but argued ambiguity in the meaning of "personnel data base" and that it should encompass any data that would disclose the sealed reports. (para. 58–59) ### Remedies and procedural contentions (extracted) - Applicant seeks, among other items, extension of leave with pay to November 30, 1999, or reinstatement to pre-May 1997 position; rescission of resignation; compensation equal to three times annual gross pay with interest; costs and attorneys' fees. (para. 38) - Respondent seeks attorneys' fees for costs before the Grievance Committee related to allegedly frivolous claims. (para. 49) *IMF Administrative Tribunal Reports, Vol. I — Judgment No. 1999-2* ### 60. The Assistant Director of Administration involved in negotiating the ### imfat-1 - 60. The Assistant Director of Administration involved in negotiating the Agreement on behalf of the Fund ### Interpretation of "personnel data base" and scope of sealed/destroyed records - Assistant Director of Administration understood "personnel data base" as referring solely to an electronic record; no discussion of the term occurred during negotiations. - Retirement Agreement references: - Paragraph 4: removal of the 1992 and 1994 numerical performance ratings from the personnel data base. - Paragraph 3: sealing of 1992 and 1994 APRs and destruction of copies. - Tribunal observations and findings: - These clauses expressly refer only to records in existence at the time of the Agreement and thus do not appear to bar creation of future records about Applicant's past performance (e.g., the 1996 SBF Report). - The 1996 SBF Report entry relating to Mr. "V" does not supply the beneficiary's performance ratings, unlike other entries. - Credible evidence indicates the 1996 SBF Report entry regarding Applicant was prepared based on the Assistant Director of Administration's knowledge rather than on sealed or destroyed records pursuant to the Retirement Agreement. - Nothing in the Agreement barred the Fund from relying on such personal knowledge or from creating, subsequent to the Agreement, a report stating that inability to produce work meeting department standards was the reason for Applicant's separation. ### Confidentiality clause (paragraph 8): parties bound and meaning - Paragraph 8 text: "8. The above terms and conditions shall remain confidential and shall not be disclosed by you, either during or after your employment with the Fund." - Dispute over parties bound: - Applicant contends paragraph 8 restricts the Fund. - Fund contends paragraph 8 applies only to Applicant. - Tribunal findings: - Wording ("shall remain confidential") suggests an obligation applying to both parties; additional phrase "shall not be disclosed by you" elaborates Applicant's obligation. - A reasonable interpretation of "confidential" for the Agreement adopts the Fund's usage under GAO No. 35 (information security), which governs staff members and defines confidentiality within Fund practice. - Fund treated such personnel documents as "Confidential" within the meaning of GAO No. 35 in this case, as a matter of policy. - The 1996 SBF Report was classified "Strictly Confidential", permitting circulation only to staff with a "need to know" as determined by the originating office under GAO No. 35, Section 4.02.3. - The confidentiality clause did not prohibit the Fund from commenting critically on Applicant's performance in the "Strictly Confidential" SBF Report, whose purpose was to explain uses of the Separation Benefits Fund. - Argument that "sealing" in paragraph 3 required a higher level of security than "Confidential" or "Strictly Confidential" fails because: - Paragraph 3's sealing requirement reasonably governs the specified documents (the 1992 and 1994 APRs) rather than all information relating to Applicant's performance. - "Sealing" is not dealt with by GAO No. 35 and is not part of the Fund's standard information-security policy. ### Whether the Fund agreed to "cleanse" Applicant's record - Applicant's claim: parties intended to "cleanse" his performance record so no record reflecting negatively on performance would remain; he expected no references to performance problems in Fund documents created after the Agreement. - Applicant's articulated motivations and concerns: - Concern about reputational damage; need for a "completely clean record" to secure new employment. - Willingness to make sacrifices to have record cleansed. - Concern about conflicting records undermining representations to prospective employers and ability to obtain references. - Tribunal findings on negotiations and intent: - Applicant (through counsel) proposed supplemental language to paragraph 3: "The assessment of your performance for 1992 and 1994 shall not be referred to or communicated, orally or in writing, to anyone except as provided in this paragraph." The Fund rejected this proposal. - Applicant also sought "expungement" of portions of the 1992 and 1994 APRs; the Fund rejected this as well. - Both parties shared an understanding that sealing the performance records aimed to prevent their circulation outside the Fund and to facilitate Applicant's job search, but the Fund did not intend total secrecy regarding Applicant's performance or reasons for SBF expenditures. - Assistant Director of Administration believed inclusion of information about Mr. "V" in the 1996 SBF Report did not infringe the "spirit of the Agreement" because the Report was for internal circulation and it was unlikely information from it would reach prospective employers; staff were prohibited from disclosing Report information outside the Fund. - The Tribunal concludes the record does not support Applicant's claim that the Fund agreed to "cleanse" his performance record; the Agreement blocked access to specified elements but did not remove the underlying record in existence. - Negotiating history indicates Applicant failed to secure broader protections he sought. ### Enforcement of negotiated settlement and comparative tribunal practice - Tribunal's policy context and rationale: - Importance of enforcing negotiated settlement and release agreements where staff receive special compensation or benefits upon separation in exchange for release of claims. - International administrative tribunals (e.g., World Bank Administrative Tribunal decisions cited) have enforced similar settlements when evidence shows individualized bargaining and exchange of consideration. - Tribunal observations from comparative decisions: - Settlements enable constructive and efficient resolution of claims; if settlements were not binding, incentives to settle would be undermined. - Tribunals look to language and negotiating history and whether the agreement was supported by consideration (benefits not otherwise entitlements) to determine enforceability. - Acceptance of settlement terms often reflects a real balancing of interests and does not provide a basis for overturning an agreement merely because a party felt pressure or desired broader terms. *IMF Administrative Tribunal, Judgment No. 1999-2.* ### 81. Finally, the WBAT also pointed out that, given the clarity of the lan- ### JUDGMENT No. 1999-2 ### WBAT reasoning on release agreements and Applicant's choice - WBAT emphasized that clear agreement language means an applicant who intended a narrower release should have expressly sought such limitation: "31. ... In view of the clarity of this language, it might have been expected that, had the Applicant sought to confine its breadth in the manner he now contends, he would have expressly sought some qualification or limitation in the wording of the contract ...." - The Tribunal notes Applicant sought additional protective wording in the Retirement Agreement which was rejected by the Fund (see para. 13). - Participation of Applicant's counsel in negotiations (albeit not in all negotiations) indicates the terms reflected a considered choice by Applicant. - WBAT precedent (Arda Kehyaian) states: "26. . .. In all cases of release agreements the staff member is assumed to have balanced the benefits resulting from the different options he or she has, and finally to have decided to consent to the proposed agreement. ... The fact that the Applicant's counsel took part in negotiating the terms of the agreement and finally conveyed to the Respondent that these terms were accepted by the Applicant shows clearly that the Applicant's acquiescence in the release agreement was a free and considered choice." ### Enforcement of the Retirement Agreement and Applicant's relief claims - Although Applicant does not challenge validity of the Retirement Agreement, he seeks a remedy for its alleged breach; Tribunal finds WBAT reasoning instructive where there is vigorous, individualized negotiation. - When alternative language was proposed and rejected during negotiations, plain meaning of terms is to be accorded. - Settlement and release agreements involve a bargain: foregoing litigation risks in exchange for consideration. - Applicant relinquished ability to challenge treatment through litigation and received substantial, described by the Fund as "unprecedented", consideration including large monetary and lasting pension benefits. - Tribunal concludes specific terms of the Retirement Agreement must be enforced and Applicant's construction of those terms is rejected. ### Conflict claim: Fund internal law (SBF reporting) vs contractual obligations - Issue posed: Is there a conflict between Fund internal law requiring preparation and circulation of the SBF Report and contractual obligations to Applicant under the Retirement Agreement; if so, which prevails? - Tribunal conclusion: inclusion in the 1996 SBF Report of information relating to Applicant's performance did not violate the Retirement Agreement between Mr. "V" and the Fund. - Terms agreed by the Fund (sealing 1992 and 1994 performance reports and destroying copies, removal of numerical ratings for those years from the personnel data base, and obligation to keep Agreement terms confidential) were not in conflict with SBF reporting requirements (which required inclusion in a "Strictly Confidential" report, with limited circulation, a listing of cases not identified by name giving reasons for expenditure of SBF funds). - Therefore, the question whether the Retirement Agreement prevails does not arise. ### Disclosure during negotiations of SBF reporting requirements - Applicant contends Fund acted illegally by not disclosing SBF reporting requirements during negotiation of the Agreement. - Fund did not dispute not mentioning the source of funding for Applicant's continued status or any reporting obligations during negotiations. - Tribunal draws on IMFAT Judgment No. 1996-1 (Mr. M. D' Aoust) precedent: acceptance of an offer weighs against challenge but is a rebuttable presumption; inequality of information can permit challenge where there is misrepresentation or irregularity. - Tribunal finds no deliberate misleading, misrepresentation, or irregularity by the Fund in not disclosing SBF reporting requirements during negotiations. - Officials could reasonably have believed reporting requirements were not in conflict with negotiated terms; disclosure might have transgressed the "Strictly Confidential" classification of the SBF Report. ### Alleged violations of GAO No. 35 (Information Security) - Applicant's twofold GAO No. 35 argument: 1. Retirement Agreement required information pertaining to Applicant in the 1996 SBF Report be classified at a higher level than "Strictly Confidential", which permits access to those with a "need to know" under GAO No. 35, Section 4.02.3. 2. By allegedly violating the Retirement Agreement, the Fund violated Section 7.02(iii) of GAO No. 35, which requires honoring agreements under which information is provided. - Tribunal rejects first argument: it conflates content of sealed individual performance reports (1992 and 1994 APRs) with summary content of the SBF Report, which does not mention Mr. "V"'s performance ratings. - Tribunal explains only higher level than "Strictly Confidential" is "Secret" and quotes Section 3.04.4 SECRET criteria: - "(i) extremely sensitive information entrusted to or generated by the Fund, the secrecy of which, in the opinion of management or the heads of departments, bureaus, or offices, is essential to the success of Fund initiatives or operations or of the plans of one or more of its members to which the Fund is privy; or, - (ii) other information for which management or the heads of departments, bureaus, and offices judge the level of protection associated with the SECRET classification necessary." - Section 3.05.3 limits use: "[t]he STRICTLY CONFIDENTIAL classification should be used sparingly, and the SECRET classification only in exceptional circumstances." - Information security policy objective (Section 1.02) balances protection against need for information flow and organizational efficiency: "The objective of these policies and guidelines is to ensure that necessary and sufficient levels of protection against unauthorized access and disclosure are afforded to all sensitive information in a manner that neither unnecessarily impedes the flow of information nor inhibits organizational efficiency and that balances the costs of protection against the risks and consequences of unauthorized access and disclosure." - Tribunal concludes it was reasonable managerial discretion to: - classify the 1996 SBF Report as "Strictly Confidential"; and - decide that the Managing Director, Deputy Managing Directors, Senior Personnel Managers, the Ombudsperson and the SAC Chairman had a "need to know". - "Strictly Confidential" classification appropriate because it is designed to protect "information involving matters of strict personal privacy (e.g. medical and financial information related to benefit entitlements)." (Section 3.04.3(iii)) - Section 7.02(iii) reads: "7.02 Any person in the possession of information or records that are subject to this Order shall safeguard them, as applicable, in accordance with: (iii) the agreements, arrangements or understandings under which the information or records were provided." - Tribunal finds Section 7.02(iii) inapplicable because no information or records were provided to any person under the Retirement Agreement; Applicant's claim under Section 7.02(iii) is predicated on a finding of breach of the Agreement, which the Tribunal does not sustain. ### Alleged violations of N Rules - Applicant asserts circulation of the SBF Report violated Fund's N Rules regulating staff conduct. - The N Rule pertinent to protection of information is N-6: - "N-6. Persons on the staff of the Fund, and persons formerly on the staff of the Fund, shall not, at any time, without the express authorization of the Managing Director: (i) reveal any unpublished information known to them by reason of their service with the Fund to a person not authorized by the Fund to receive the information; or (ii) use, or allow the use of, unpublished information known to them by reason of their service with the Fund for private advantage, directly or indirectly, or for any interest contrary to that of the Fund as determined by the Managing Director. Adopted as part of N-5 September 25, 1946, amended June 22, 1979." - Rule N-6 governs transmission of Fund information to parties outside the Fund. - Because the 1996 SBF Report was circulated only to addressees within the Fund, the Tribunal cannot conclude N-6 applies to the circumstances of this case. ### Alleged violations of rules regarding preparation of the SBF Report - Applicant contends preparation and circulation of the 1996 SBF Report violated guidelines for scope and content of the Report (ADM Policy memorandum): names of beneficiaries are to be disclosed only to the Managing Director (memorandum actually notes names to be provided to the Deputy Managing Director). - Concern: identities of recipients might be deduced from identifying characteristics; Assistant Director of Administration conceded Applicant's entry was identifiable by nationality, departmental affiliation and age. - Starting with the 1997 Report, annual SBF Reports no longer reveal nationalities of SBF recipients to enhance confidentiality. - Tribunal unable to conclude that the possibility some SBF recipients were identifiable in the circulated Report constituted a violation of guidelines governing preparation of the Report. *IMF Administrative Tribunal, Judgment No. 1999-2* ### 4. Any other duty of confidentiality ### 4. Any other duty of confidentiality ### Circulation of the 1996 SBF Report and arbitrariness claim - Applicant alleges the Fund acted in an "arbitrary and capricious" manner by circulating the 1996 SBF Report. - The Fund's policy requiring preparation and circulation of the Report was based on considerations of transparency and equity of personnel practices. - Selection of the thirty high-level Fund personnel to receive the Report was reasonably designed to support the objective of providing Fund-wide response to the allocation of SBF resources. - Applicant contends circulation of "sensitive information" about himself was "at least grossly negligent, if not intentional". - The Tribunal referenced Ronald K. Chan v. Asian Development Bank, ADBAT Decision No. 20 (1996), where limited intra-organizational notification regarding a staff member's suspension was held to be "strictly limited to the needs of the good administration of the Bank" and not "insensitive and negligent (if not deliberate and malicious) publicity" (para. 46). ### Fund liability for actions of the Staff Association Committee (SAC) - Applicant asserts the Staff Association Committee ("SAC") provided copies of the 1996 SBF Report at its information desk, making it available for unfettered review by any staff member. - Applicant does not directly argue that the SAC was bound by the Retirement Agreement between himself and the Fund or that the Fund is responsible for SAC acts that might violate the Fund's information security requirements; rather, he asks the Tribunal to conclude the Fund became responsible for damage allegedly resulting from SAC actions once the Fund circulated the Report to the SAC Chairman. - The Tribunal concludes the SAC's activities are not "administrative acts" taken in the administration of the staff of the Fund and therefore are not within the Tribunal's jurisdiction. - The Fund had transmitted the Report to the SAC Chairman as a practice since the late 1980s to transmit all materials circulated to the Personnel Committee to the SAC Chairman. - The Report was classified and marked "Strictly Confidential" pursuant to GAO No. 35. - Applicant's testimony before the Grievance Committee (unchallenged) is the evidence that the Report was reproduced and left in view of visiting staff members in the Staff Association office; Applicant also testified he was serving as SAC Vice-Chairman at the time. - The Fund's position: if the SBF Report were left out on a table in the Staff Association office available for anyone to view, that action would be "clearly inconsistent with the 'Strictly Confidential' designation placed on the document by the Fund," but the Staff Association is not part of the structure of the Fund nor under the control of Fund management; accordingly, the Fund is not responsible for the actions of the Staff Association and is not liable for misfeasance on its part. ### Legal status of the Staff Association and Tribunal jurisdiction - Rule N-14 of the Fund's N Rules (Staff Regulations) provides: "Persons on the staff of the Fund shall have the right to associate in order to present their views to the Managing Director and the Executive Board, through representatives, on matters pertaining to personnel policies and their conditions of service." - The Staff Association is a self-governing organization bound by its Constitution and Bylaws; all members of the staff, including Assistants to Executive Directors, are eligible for membership. - The Staff Association is governed by a seven-member Staff Association Committee, including a Chairman, Vice-Chairman and Secretary-Treasurer elected from the membership. - The Association may be dissolved by its membership pursuant to referendum with the approval of two-thirds of the membership (Constitution, Articles IV, V and XV). - The Staff Association's purposes (Constitution, Article II): - "a. to promote the interests and general welfare of the staff; and - b. to cooperate with the Managing Director in furthering the efficient conduct of the work of the staff." - The Staff Association's activities (Constitution, Article III) include: - "a. arrange for communicating the views of the staff to the management with respect to any matter affecting the staff; - b. assist the Managing Director, at his request, in matters relating to the staff; and - c. organize and provide facilities for recreational, educational, and welfare activities for the staff." - The Administrative Tribunal's jurisdiction ratione materiae is limited by Article II of the Statute to challenges by an adversely affected staff member to the legality of an "administrative act," defined as "any individual or regulatory decision taken in the administration of the staff of the Fund" (Statute, Article II, Sections 1.a. and 2.a.). - The Tribunal asks whether an act of a staff member in his capacity as SAC Chairman can be regarded as a "decision taken in the administration of the staff of the Fund" for purposes of Article II. - The Fund has sole responsibility for administration of the staff; only the Fund is contemplated as a respondent before the Tribunal, and pleadings are always exchanged between an applicant and the Fund. - The Tribunal concludes the alleged act of the SAC in this case is not an administrative act within the meaning of the Statute. - The Tribunal rejects imputing SAC acts to the Fund merely because the Fund transmitted the Report to the SAC Chairman; congruence of interests between management and the SAC does not confer Fund authority to acts by the SAC taken in contravention of those interests. - The SAC acts independently of the Fund; its primary purpose is to act as representative of staff (vs. management) interests. Applicant himself alleges the SAC made the Report available "in furtherance of its goals," not the goals of the International Monetary Fund. - The Tribunal concludes any complaint or remedy against the SAC for its handling of the 1996 SBF Report cannot be pursued before the Administrative Tribunal and that the Tribunal may not entertain as part of Applicant's complaint against the Fund all alleged consequences of the Fund's circulation of the Report, including SAC handling after receipt. - Extending the Tribunal's jurisdiction to acts taken by the SAC would be inconsistent with the statutory limitation to consideration of "decision[s] taken in the administration of the staff of the Fund." ### Injury, causation, and remedies - Applicant contends distribution of the 1996 SBF Report damaged his reputation within the Fund and created conflicting official records, impairing his ability to obtain supportive references in seeking outside employment. - The Fund contends Applicant has established no nexus between preparation and circulation of the Report and his inability to find employment or any damage to his professional reputation; absent injury attributable to an illegal act by the Fund, no remedy is authorized under the Tribunal's statute. - Applicant introduced no evidence that anyone responsible for denying him employment after separation from the Fund acted on knowledge obtained from the SBF Report. - Applicant speculated a former Fund staff member (now with another organization) may have been aware of his performance ratings but offered no proof that that person had access to the SBF Report or that the knowledge derived from the Report. - Applicant offered similar speculation regarding another potential employer with no proof or particular connection to the SBF Report. - Applicant's claim that his former department intervened to prevent him obtaining a consultancy with the Fund was found inapposite because it bears no relation to circulation of the SBF Report; the Tribunal rejected Applicant's document request on the consultancy matter as "irrelevant" to the case because the acts complained of allegedly took place after Applicant's separation on November 30, 1998, though Applicant claimed a pattern pre-dating his separation. *Judgment No. 1999-2, IMF Administrative Tribunal Reports, Vol. I* ### 118. More generally, Applicant complains that his job search has been ### 118. More generally, Applicant complains that his job search has been ### Injury to professional reputation and ability to find employment - Applicant alleges his job search has been hampered by having to "fend off conflicting official records." - Tribunal finding: the assertion that "conflicting official records" have caused injury is speculative. - Applicant fears that disclosure of the 1996 SBF Report to a potential employer could lead to a claim of misrepresentation and adversely affect his ability to secure references. - Tribunal conclusions: - The argument is speculative and ignores that potential employers would most likely seek references from persons in Applicant's own department with whom he worked during his career. - The Retirement Agreement does not prevent those individuals from drawing on their own recollections and evaluations of his performance. - Applicant himself attested that "wide-spread reputational damage in the community" pre-existed the Retirement Agreement. - The Retirement Agreement does not obscure the fact that Applicant's performance "was at issue during his career, at any rate in its late stage." - Final determination: Applicant has not shown that he has suffered injury to his professional reputation or to his ability to find alternative employment as a result of the Fund's allegedly illegal or negligent action in preparing and circulating the 1996 SBF Report. ### Representation of the Fund by its Legal Department before the Administrative Tribunal - Applicant contends in his Reply that representation of the Fund by its Legal Department in Tribunal proceedings violates Article X, Section 3 of the Tribunal's Statute, quoted in part as: - "3. Each party may be assisted in the proceedings by counsel of his choice, other than members of the Fund's Legal Department, and shall bear the cost thereof, subject to the provisions of Article XIV, Section 4 and Article XV." - Tribunal analysis: - The purport of Article X, Section 3 is to prohibit members of the Legal Department from representing Applicants before the Tribunal, not to bar Legal Department members from representing the Fund. - The Statute's Commentary explains that members of the Fund's Legal Department are excluded as counsel for applicants "given the inherent conflict of interest such assistance would pose" because of their responsibility to the Fund. - The Tribunal's Rules of Procedure contemplate representation of the Fund by the Legal Department: Rule VII, paragraph 7 provides that the Registrar "shall transmit a copy of [an application] to the General Counsel." - In practice, the Legal Department has represented the Fund from the outset of the Tribunal's operations. - Tribunal conclusion: Applicant's objection to the Legal Department's representation of the Fund cannot be sustained. ### Applicant's challenge to the Grievance Committee's jurisdiction and standard of review - Applicant's contention: - The Grievance Committee lacked subject-matter jurisdiction because the complaint "pertained to a defined contractual relationship not to the exercise of administrative discretion." - He argues both that the Committee's standard of review is inappropriate and that, on that basis, the Committee lacked jurisdiction. - Relevant provisions cited (GAO No. 31, Rev. 3): - Section 4.01: Committee's jurisdiction to hear "any complaint brought by a staff member to the extent that the staff member contends that he or she has been adversely affected by a decision that was inconsistent with Fund regulations governing personnel and their conditions of service." - Section 4.02: Exhaustion of administrative review required. - Section 4.03: Limitations on jurisdiction, including no jurisdiction over challenges to (i) Executive Board decisions; (ii) staff regulations as approved by the Managing Director; or (iii) decisions arising under the Staff Retirement Plan within the competence of the Administration or Pension Committees. - Section 4.04: The Committee shall decide whether it has jurisdiction for the purpose of proceeding with a grievance. - Section 5.01: Review of non-discretionary decisions—determine whether decision was consistent with and taken in accordance with applicable Fund rules and regulations. - Section 5.02: Review of discretionary decisions—uphold challenge only if decision was arbitrary, capricious, or discriminatory, or procedurally defective in a manner that substantially affected the outcome. - Fund's position: - The Committee's authority to hear complaints "to the extent that the staff member contends that he or she has been adversely affected by a decision that was inconsistent with Fund regulations governing personnel and their conditions of service" embraces contractual as well as regulatory requirements; hence the Committee had jurisdiction over Applicant's claim. - Tribunal reasoning: - It is odd for Applicant to argue lack of jurisdiction after submitting the case to the Grievance Committee; jurisdiction challenges are ordinarily raised as defenses to motions to dismiss for failure to exhaust channels of review. - If the Committee lacked jurisdiction, issues of timeliness under Article VI, Section 1 would arise, since an application challenging an individual decision must be filed no more than three months after notification where applicable channels are absent. - Applicant suggested the Committee's recommendation was "misleading" because he claims the Committee lacked authority to settle contractual disputes; he argues the Tribunal can "recognize an agreement between the Fund ... and a staff member ... and settle all or any differences ... whether contractual or not." - The Tribunal, citing Mr. M. D'Aoust (IMFAT Judgment No. 1996-1), held that the Tribunal: - Is authorized to weigh the record generated by the Grievance Committee as part of the evidence. - Decides each case de novo, making independent findings of fact and law, and is not an appellate body bound by Committee reasoning or recommendation. - If Applicant's challenge to the Committee's standard of review is treated as a challenge to a "regulatory decision" under Article II of the Statute, Applicant must establish he was "adversely affect[ed]" (Article II, Section 1.a.). - Given D'Aoust and the Tribunal's de novo role, it would be difficult for Applicant to show adverse effect from the Committee's exercise of jurisdiction or its standard of review. - GAO No. 31 grants the Committee authority to decide whether it has jurisdiction (Section 4.04), and Applicant has not specifically challenged the legality of that provision. - Tribunal conclusion: It cannot entertain Applicant's contentions about the Grievance Committee's exercise of jurisdiction. ### Respondent's request for costs for defending allegedly frivolous claims in the Grievance Committee - Fund's request: - Seeks an award of costs under Article XV of the Tribunal's Statute and Order No. 1997-1 for defending allegedly frivolous claims Applicant brought in administrative review proceedings (claims not included in the Application before the Tribunal). - Article XV (quoted in part): - Article XV.1: Tribunal may order reasonable compensation by the applicant to the Fund for the cost of defending the case if it finds that: - a. the application was manifestly without foundation either in fact or under existing law, unless applicant demonstrates the application was based on a good faith argument for an extension, modification, or reversal of existing law; or - b. the applicant intended to delay resolution or to harass the Fund or its officers or employees. - Article XV.2: Amount awarded shall be collected by deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director, who may waive the claim in particular cases. - Tribunal analysis: - The Fund does not allege Applicant brought frivolous claims before the Tribunal; the allegedly unfounded claims were in administrative review and "have not been included in the Application to the Tribunal." - Therefore the Fund has not alleged the predicate required for an award under Article XV—that "the application was manifestly without foundation ..." - The Fund points to Tribunal Order No. 1997-1 to argue costs of legal representation during administrative review may be subject to fee awards. - Background on Order No. 1997-1: - Arose where the statutory predicate for awarding costs—"the application is well-founded in whole or in part" under Article XIV, Section 4—had been met in IMFAT Judgment No. 1997-1. - Tribunal interpreted Article XIV, Section 4 to include costs of legal representation incurred in administrative review proceedings that precede Tribunal proceedings, reasoning that preparation of a claim that succeeds in the Tribunal necessarily involves presentation to, and rejection by, the Grievance Committee. - The Tribunal considered that if successful claims could not encompass such costs, the statutory purpose of giving all staff members access to the Tribunal would be undermined. - The Tribunal also noted that had the claim succeeded initially in the Grievance Committee, the grievant could have benefited from the Committee's fee-shifting authority. - Tribunal conclusion: Because the Fund has not alleged the required predicate under Article XV with respect to the Application to the Tribunal, the request for costs under Article XV cannot be sustained on the present record. *IMF Administrative Tribunal, Judgment No. 1999-2, IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. I* ### 137. The decision and rationale of interpretative Order No. 1997-1 are ### The decision and rationale of interpretative Order No. 1997-1 are ### Distinction between Order No. 1997-1 and the Fund's request in Mr. "V" - Order No. 1997-1 is distinguished from the Fund's request in the case of Mr. "V" on two principal grounds: - Statutory trigger differences: - In Ms. "C" the statutory trigger that the Application be "well-founded in whole or in part" (Article XIV, Section 4) had been met. - In the present case the statutory trigger that the Application be "manifestly without foundation" (Article XV) has not been alleged. - Source of rationale: - Order No. 1997-1 gave effect to a principle embodied in the Grievance Committee's constitutive instrument GAO No. 31. - Granting the Fund's request in Mr. "V" would, in essence, supply a provision absent from GAO No. 31 (i.e., that costs could be awarded against a grievant for pressing frivolous claims), which the Tribunal states is not within its competence to enact. - GAO No. 31, Rev. 3, para. 7.05 provides: - " ... At the conclusion of the case, if the Committee concludes that a grievance is well-founded in whole or in part, it may recommend that the Fund reimburse the grievant for some or all of the reasonable costs, including legal fees, incurred by the grievant in pursuing the grievance .... " ### On Article XIV, Section 4 versus Article XV — statutory purposes and asymmetry - The Tribunal emphasizes that Article XIV, Section 4 and Article XV are not symmetrical: - Article XIV, Section 4: - Purpose: to provide for cost-shifting in favor of prevailing applicants, thereby increasing access to the Tribunal for aggrieved staff members. - Trigger phrase used in source: "well-founded in whole or in part". - Article XV: - Purpose: to penalize the bringing of frivolous claims by exacting from the offending party the cost of defending against them, thereby deterring pursuit of cases that amount to an abuse of the review process. - Trigger phrase used in source: "manifestly without foundation". - The Report of the Executive Board is cited for the purpose of Article XV (source: "Report of the Executive Board, p. 39"). ### Tribunal conclusion on awarding costs for frivolous claims - The Tribunal concludes there is no basis, either in Article XV of the Statute or in the Tribunal's interpretation of Article XIV, Section 4 in Order No. 1997-1, for the Tribunal to award costs to the Fund for defending any frivolous claims brought by Applicant in the Grievance Committee. ### Unanimous decisions of the Administrative Tribunal (Judgment No. 1999-2) - FOR THESE REASONS The Administrative Tribunal of the International Monetary Fund unanimously decides: 1. "The Fund did not act illegally, either with respect to the Retirement Agreement it had entered into with Applicant or with respect to any Fund rule or regulation, when it prepared and circulated the 1996 SBF Report, in accordance with Fund Policy." 2. "The preparation of the SBF Report and its circulation to a limited number of addressees within the Fund, which by way of explanation for the disbursement of SBF resources on Applicant's behalf characterized his performance as \"[u]nable to produce work that met department's stan­dards\", did not violate any of the following clauses of the Retirement Agreement: paragraph 3 (sealing of Applicant's 1992 and 1994 APRs); paragraph 4 (removal of the numerical APR ratings for 1992 and 1994 from the \"personnel data base\"); or paragraph 8 (confidentiality clause). Nor did the Fund agree as part of the Retirement Agreement to \"cleanse\" Applicant's record or to refrain from producing any document subsequent to the conclu­sion of that Agreement that might reflect on his performance." 3. "There is no conflict between the Fund's internal law, requiring circula­tion of the SBF Report, and its contractual obligations to Applicant under the Retirement Agreement. Likewise, the Fund did not act illegally or improp­erly in not bringing to Applicant's notice during negotiations with Applicant the SBF reporting requirements." 4. "The preparation and circulation of the 1996 SBF Report did not violate any Fund rules or regulations or breach any duty owed by the Fund to Applicant independent of the Retirement Agreement, either under GAO No. 35, the N Rules, the SBF reporting requirements themselves, or any other duty of confidentiality." 5. "Applicant's claim that the Fund is liable for alleged acts of the Staff Association Committee (SAC) with respect to the handling of the 1996 SBF Report that was circulated on a \"Strictly Confidential\" basis to the SAC Chairman is not within the Tribunal's jurisdiction ratione materia?, which is limited to \"decision[s] taken in the administration of the staff\"." 6. "As the Tribunal holds that the Fund did not breach the Retirement Agreement or violate any Fund rule or regulation in its preparation and dis­tribution of the 1996 SBF Report, and that Applicant's claim that the Fund is responsible for acts of the SAC is not within the Tribunal's jurisdiction, it is therefore not necessary to reach the question of whether Applicant suffered any injury thereby. In any event, it holds that Applicant has not established any nexus between the Fund's acts in the preparation and distribution of the 1996 SBF Report and Applicant's failure to obtain new employment." 7. "The Tribunal holds that the representation of the Fund by its Legal Department before the Administrative Tribunal does not violate Article X, Section 3 of the Tribunal's Statute." 8. "The Tribunal cannot entertain Applicant's challenge to the Grievance Committee's exercise of jurisdiction in his case or its application of its stan­dard of review." 9. "Finally, as there is no supportive statutory basis, the Tribunal holds that it cannot grant the Fund's request for an award of costs for defend­ing allegedly frivolous claims brought by Applicant in the Grievance Committee." - Judgment signed in Washington, D.C. August 13, 1999. ### Subsequent Orders interpreting judgments and assessing costs - ORDER No. 1997-1 (Interpretation of Judgment No. 1997-1) — December 22, 1997: - The Tribunal admitted the Fund's application for interpretation of Judgment No. 1997-1. - Clarifications adopted include: - The term "costs" in para. "Third" of Decision denotes costs that Applicant was or is obligated to pay for her legal representation. - The phrase "legal representation" embraces Applicant's representation in the administrative review exhausted pursuant to Article V of the Statute as well as proceedings before the Tribunal. - The limited degree to which Applicant was successful justifies proportionality in determining costs to be borne by the Fund. - No legal relationship exists between the amount of compensation awarded to Applicant and the costs of legal representation to be borne by the Fund. - ORDER No. 1998-1 (Assessment of compensable legal costs pursuant to Judgment No. 1997-1) — December 18, 1998: - Parties unable to agree on reasonable costs; Tribunal assessed costs "having regard to the submissions of the Applicant and of the Fund" and Article XIV of the Tribunal Statute. - Given Applicant's limited degree of success and taking into account nature and complexity of the case, preparation by counsel, and amount of fees in relation to prevailing rates, the Fund is liable to pay reasonable costs in the amount of $15,000. - ORDER No. 1999-1 (Interpretation of Judgment No. 1998-1) — February 26, 1999: - The Tribunal received a Fund request to interpret "jurisdiction" in paragraph "Second" of Judgment No. 1998-1 to refer only to jurisdiction ratione materiae; the Order records the request and the Tribunal's consideration under Article XVII of the Statute and Rule XX2 of the Rules of Procedure. *Administrative Tribunal of the International Monetary Fund — Judgment No. 1999-2 and Orders No. 1997-1, 1998-1, 1999-1 (Washington, D.C.; December 22, 1997; December 18, 1998; August 13, 1999; February 26, 1999).* ### 3. The Tribunal shall, after giving the other party or parties a reasonable opportu- ### 3. The Tribunal shall, after giving the other party or parties a reasonable opportu- ### Interpretation of Judgments: admission and effect - The Tribunal shall, after giving the other party or parties a reasonable opportunity to present its or their views on the matter, decide whether to admit the application for interpretation. - If the application is admitted, the Tribunal shall issue its interpretation, which shall thereupon become part of the original judgment. - Article XIII, Section 2: "Judgments shall be final, subject to Article XVI and Article XVII, and without appeal." ### Order No. 1999-1 — Fund's request for interpretation (Decision) - The Tribunal, unanimously and on the basis of Article XVII and Rule XX, decided not to admit the Fund's application for interpretation. - Reasons given: - The term "jurisdiction" in paragraph "Second" of Judgment No. 1998-1 is neither obscure nor incomplete. - Adoption of the requested interpretation would constitute an amendment of the Judgment; the Judgment is final and without appeal, and the Statute and Rules of Procedure do not permit amendment by interpretation. - Members recording the decision: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Philine R. Lachman, Registrar - Decision dated: February 26, 1999 - Washington, D.C. ### Order No. 1999-2 — Mootness of Application (Mr. "P" v. International Monetary Fund) - Background facts: - Mr. "P" filed an Application dated November 20, 1998, challenging the Administration Committee of the Staff Retirement Plan's decision to withhold part of his monthly pension payments pending resolution of a domestic relations matter. - On March 19, 1999 the Administration Committee reversed its decision, decided to pay Mr. "P" all amounts withheld, plus interest. - Tribunal action and rationale: - Considering that Mr. "P"'s position has been satisfied, the Administrative Tribunal decides to treat the Application as moot. - Order dated: August 12, 1999 - Washington, D.C. - Presiding and recording officers: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Agustin Gordillo, Associate Judge - Celia Goldman, Acting Registrar ### Key jurisprudential findings and recurring themes (selected index entries and rulings) - Finality of Judgments and Interpretation - Judgments are final and without appeal (Order No. 1997-1; Order No. 1999-1). - Legality of a Judgment is not subject to interpretation (Order No. 1997-1). - Jurisdiction (general and ratione personae/materiae/temporis) - Jurisdiction of IMFAT is conferred exclusively by its Statute (Judgment No. 1999-1, para. 96; p. 164). - IMFAT is a tribunal of limited jurisdiction (Judgment No. 1999-1, paras. 56-59; pp. 148-150). - Jurisdiction ratione personae includes fixed-term appointees but intentionally excludes contractual employees (Judgment No. 1999-1, para. 47; pp. 145-146). - Jurisdiction ratione temporis: financial consequences of an administrative act pre-dating the Tribunal's competence do not confer jurisdiction (Judgment No. 1994-1, para. 26; p. 45). - Grievance Committee and administrative review - Grievance Committee recommendation is not an "administrative act" (Judgment No. 1996-1, para. 17; pp. 63-64). - Tribunal weighs the record generated by the Grievance Committee as evidence but is not bound by its reasoning or recommendation (Judgment No. 1996-1, para. 17; pp. 63-64). - Tribunal will reconsider admissibility if Grievance Committee decides it lacks jurisdiction (Judgment No. 1998-1, para. 43; p. 133). - Settlement and release agreements - Importance of enforcing settlement and release agreements; indicia of enforceability discussed (Judgment No. 1999-2, paras. 78-83; pp. 189-191). - Negotiating history, inequality of information and bargaining power, and interpretation of agreement are assessed (Judgment No. 1999-2, paras. 11-15, 62, 75-77, 82; pp. 171-173, 184, 188-189, 191). - Costs - Costs to Applicant: criteria, award and proportionality to degree of success (Judgment No. 1997-1; Order No. 1998-1; Order No. 1997-1; pp. 215-218). - Tribunal not authorized to award costs to the Fund for defending allegedly frivolous claims in the Grievance Committee (Judgment No. 1999-2, paras. 132-139; pp. 207-209). - Personnel policy, practice, and promotions - Authority to codify personnel practice into policy; limited circulation of personnel policy and notice issues (Judgment No. 1997-2, paras. 40-49, 52, 56, 60; pp. 98-103, 103, 105-106, 107). - Non-conversion (extension) of fixed-term appointment may give rise to compensable claim where procedural irregularity is found, even if non-conversion is sustained on the merits (Judgment No. 1997-1, paras. 41-44; pp. 85-87). - Information security and confidentiality - Fund's information security policy addressed; no violation found in Judgment No. 1999-2 (paras. 91-98; pp. 194-196). - Scope of review - Tribunal makes its own findings of fact and law; not bound by Grievance Committee (Judgment No. 1996-1, para. 17; pp. 63-64). - Statute and Rules references (selected) - Article II, Article III, Article V, Article VI, Article X, Article XIII, Article XIV, Article XV, Article XVII, Article XX noted across judgments and orders with specific paragraph and page citations in the index. *IMF Administrative Tribunal Reports, Vol. I* ### 1. The Tribunal shall be competent to pass judgment upon any ### The Tribunal shall be competent to pass judgment upon any application ### Competence and scope of jurisdiction - The Statute vests the Tribunal with competence to pass judgment on applications: - a. by a member of the staff challenging the legality of an administrative act adversely affecting him; or - b. by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant. - The Tribunal shall not have any powers beyond those conferred under the Statute. - In deciding an application, the Tribunal shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts. - The Tribunal is bound by any interpretation of the Fund's Articles of Agreement decided by the Executive Board, subject to review by the Board of Governors in accordance with Article XXIX of that Agreement. - The competence of the Tribunal may be extended to any international organization upon the terms established by a special agreement to be made with each such organization; each special agreement shall provide that the organization concerned shall be bound by the judgments of the Tribunal and responsible for payment of any compensation awarded. ### Definitions (Article II, Section 2) - "Administrative act" means any individual or regulatory decision taken in the administration of the staff of the Fund. - "Regulatory decision" means any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund. - "Member of the staff" includes: - (i) any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff; - (ii) any current or former assistant to an Executive Director; and - (iii) any successor in interest to a deceased member of the staff as defined in (i) or (ii) above to the extent that he is entitled to assert a right of such staff member against the Fund. - Time calculation rule: the day of the event from which the period runs is excluded; the next working day of the Fund is included when the last day of the period is not a working day. - Gender usage: the masculine pronoun shall include the feminine pronoun. ### Administrative review exhaustion and admissibility time limits (Articles V and VI) - An application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review when the Fund has established such channels. - When available channels include the Fund procedure for complaints and grievances, administrative review is deemed exhausted when: - a. three months have elapsed since a recommendation on the matter has been made to the Managing Director and the applicant has not received a decision stating that the relief he requested would be granted; - b. a decision denying the relief requested has been notified to the applicant; or - c. two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - When available channels do not include that specific procedure, administrative review is deemed exhausted when: - a. three months have elapsed since the request for review was made and no decision stating that the relief requested would be granted has been notified to the applicant; - b. a decision denying the relief requested has been notified to the applicant; or - c. two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - All channels of administrative review shall be deemed exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal. - Admissibility time limits: - 1. Individual decision challenges: not admissible if filed more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision. - 2. Regulatory decision challenges: not admissible if filed more than three months after the announcement or effective date of the decision, whichever is later; however, the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging an individual decision taken pursuant to that regulatory decision. - 3. In exceptional circumstances, the Tribunal may waive the time limits prescribed under Sections 1 or 2 if it considers the delay justified. - 4. Filing an application does not suspend implementation of the contested decision. - 5. No application may be filed or maintained after the applicant and the Fund have reached an agreement on settlement of the dispute. - Transitional temporal limitations: - The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if channels of administrative review concerning that act have been exhausted only after that date. - For decisions taken between October 15, 1992 and the establishment of the Tribunal, an application is admissible only if filed within three months after the establishment of the Tribunal. The Tribunal is deemed established when the staff has been notified by the Managing Director that all members have been appointed. ### Composition, appointment, and independence of members (Article VII and VIII) - Appointment and terms: - a. The President shall be appointed for two years by the Managing Director after consultation with the Staff Association and with the approval of the Executive Board. The President shall have no prior or present employment relationship with the Fund. - b. Two associate members and two alternates who have no prior or present employment relationship with the Fund shall be appointed for two years by the Managing Director after appropriate consultation. - c. The President, the associate members, and their alternates must be nationals of a member country of the Fund at the time of their appointments and must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. - Reappointment: The President and associate members and their alternates may be reappointed in accordance with the procedures set forth; a member appointed to replace another holds office for the remainder of the predecessor's term. - Recusal and replacement: - Any member with a conflict of interest in a case shall recuse himself. - Decisions are taken by the President and the associate members; if an associate member is recused or unable to hear a case, an alternate shall be designated by the President. - If the President is unable to hear a case, the elder of the associate members shall act as President and shall be replaced by an alternate as associate member. - The Managing Director shall terminate the appointment of a member who, in the unanimous opinion of the other members, is unsuited for further service. - Independence: Members shall be completely independent in the exercise of their duties; they shall not receive instructions or be subject to constraint and shall be considered officers of the Fund for purposes of the Articles of Agreement. ### Procedures, evidence, and proceedings (Articles IX–XII) - Administrative arrangements: - The Managing Director shall make the administrative arrangements necessary for the functioning of the Tribunal. - The Managing Director shall designate personnel to serve as a Secretariat to the Tribunal; such personnel shall be under the authority of the President and shall not disclose confidential information received in performance of their duties. - The expenses of the Tribunal shall be borne by the Fund. - Evidence and procedure: - The Tribunal may require production of documents held by the Fund, except the Managing Director may withhold evidence if he determines introduction might hinder the operation of the Fund because of the secret or confidential nature of the document; such a determination shall be binding on the Tribunal. - Applicant's allegations concerning contents of withheld documents shall be deemed demonstrated in the absence of probative evidence to the contrary. - The Tribunal may examine witnesses and experts, subject to the same qualification. - The members shall, by majority vote, establish the Tribunal's Rules of Procedure, which shall include provisions concerning presentation of applications; intervention by persons whose rights may be affected; presentation of testimony and other evidence; summary dismissal of applications without disposition on the merits; and other matters relating to the functioning of the Tribunal. - Representation and hearings: - Each party may be assisted by counsel of his choice, other than members of the Fund's Legal Department, and shall bear the cost thereof, subject to Article XIV, Section 4 and Article XV. - The Tribunal shall hold its sessions at the Fund's headquarters at dates to be fixed in accordance with its Rules of Procedure. - The Tribunal shall decide whether oral proceedings are warranted. Oral proceedings shall be open to all interested persons unless exceptional circumstances require that they be held in private. - Decision-making: - All decisions of the Tribunal shall be by majority vote. - Judgments shall be final, subject to Article XVI and Article XVII, and without appeal. - Each judgment shall be in writing and shall state the reasons on which it is based. - Deliberations of the Tribunal shall be confidential. ### Remedies, compensation, and costs (Article XIV and XV) - Remedies for successful challenges: - 1. If the Tribunal concludes an application challenging the legality of an individual decision is well-founded, it shall prescribe rescission of that decision and all other measures required to correct the effects of that decision, whether involving payment of money or otherwise. - 2. When prescribing measures other than payment of money, the Tribunal shall fix an amount of compensation to be paid to the applicant should the Managing Director, within one month of notification of the judgment, decide, in the interest of the Fund, that such measures shall not be implemented. - The amount of such compensation shall not exceed the equivalent of three hundred percent (300%) of the current or, as the case may be, last annual salary of such person from the Fund. - The Tribunal may, in exceptional cases, when it considers it justified, order payment of a higher compensation; a statement of specific reasons for such an order shall be made. - 3. If the Tribunal concludes an application challenging the legality of a regulatory decision is well-founded, it shall annul such decision. Any individual decision adversely affecting a staff member taken before or after the annulment and on the basis of such regulatory decision shall be null and void. - Allocation of costs: - 4. If an application is well-founded in whole or in part, the Tribunal may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant's counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates. - 5. When a procedure prescribed in the rules of the Fund for taking a decision has not been observed, the Tribunal may, at the request of the Managing Director, adjourn proceedings for institution of the required procedure or for adoption of appropriate corrective measures, for which the Tribunal shall establish a time certain. - Sanctions against frivolous applications: - 1. The Tribunal may order the applicant to compensate the Fund for all or part of the cost of defending the case if it finds that: - a. the application was manifestly without foundation either in fact or under existing law, unless the applicant demonstrates the application was based on a good faith argument for extension, modification, or reversal of existing law; or - b. the applicant intended to delay resolution of the case or to harass the Fund or any of its officers or employees. - 2. The amount awarded by the Tribunal shall be collected by way of deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director, who may, in particular cases, waive the claim of the Fund against the applicant. ### Judgment revision, correction, and archives (Articles XVI–XVIII) - Revision: A party may request revision of a judgment within a period of six months after acquiring knowledge of a newly discovered fact which might have had a decisive influence on the judgment and which was unknown at the time the judgment was delivered to both the Tribunal and that party. - Correction/interpretation: The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. - Archives and copies: - The original of each judgment shall be filed in the archives of the Fund. A copy, attested by the President, shall be delivered to each of the parties concerned. - A copy shall also be made available by the Secretariat on request to any interested person, provided the President may decide that identities or other means of identification of the applicant or other persons mentioned in the judgment shall be deleted from such copies. ### Transitional and amendment provisions (Articles XIX–XXI) - Amendment: The Statute may be amended only by the Board of Governors of the Fund. - Temporal limits: - The Tribunal shall not be competent to pass judgment upon any application challenging the legality of an administrative act taken before October 15, 1992, even if administrative review channels were exhausted only after that date. - Decisions taken between October 15, 1992 and the establishment of the Tribunal: applications admissible only if filed within three months after the establishment of the Tribunal; the Tribunal is deemed established when staff have been notified by the Managing Director that all members have been appointed. - Extension to other organizations: The competence of the Tribunal may be extended to any international organization under a special agreement providing for binding judgments and responsibility for payment of compensation, and provisions concerning participation in administrative arrangements and sharing of Tribunal expenses. ### Report of the Executive Board — introduction - The Report states that in 1986 the Executive Board began considering establishment of an administrative tribunal to adjudicate employment-related disputes at the Fund. - The Board reviewed major administrative tribunals of other international organizations and focused particular attention on: - (1) the role of tribunals in reviewing employment-related decisions; - (2) the types of cases authorized to be heard; - (3) access to tribunals; - (4) composition and structure of tribunals; and - (5) remedies and costs tribunals are authorized to award. - On that basis a draft statute providing for establishment of an administrative tribunal for the Fund was prepared, with an accompanying commentary. *Report of the Executive Board to the Board of Governors on the Establishment of an Administrative Tribunal for the International Monetary Fund; Statute of the Administrative Tribunal of the IMF.* ### 2. The Executive Board is hereby proposing the adoption by the ### 2. The Executive Board is hereby proposing the adoption by the ### Part II. Commentary on the Proposed Statute - The commentary explains the meaning of each provision of the proposed statute. - Part III describes the procedure for the adoption of the proposed statute. - Part IV proposes a resolution for adoption by the Board of Governors. - The text of the proposed statute is attached to the proposed resolution. ### ARTICLE I - Establishes a tribunal of the International Monetary Fund ("the Fund"), to be known as the Administrative Tribunal of the International Monetary Fund ("the Tribunal"). - Article I performs a constitutive function and names the tribunal. - The Tribunal is envisaged to serve the Fund exclusively, with provision in Article XXI for other international organizations to affiliate with the Fund tribunal. ### ARTICLE II — Competence of the Tribunal - The Tribunal’s power to pass judgment derives from the statute establishing it; the statute defines the Tribunal's scope and limitations. - The Tribunal would be judicial in function and would determine whether a decision transgressed the applicable law of the Fund, including applicable rules, procedures, and recognized norms. - The Tribunal would not resolve hypothetical questions or issue advisory opinions; a staff member must be adversely affected by a decision to challenge it. - Section 1 — The Tribunal shall be competent to pass judgment upon any application: - a. by a member of the staff challenging the legality of an administrative act adversely affecting him; - Section 1(a) empowers the Tribunal to review a staff member's challenge to the legality of an administrative act that adversely affects him. - Several other tribunals contain similar jurisdictional language. - Although the Fund has not adopted a formal statement of principles of staff employment, the employment relationship is subject to legal rights and obligations, including the employer’s obligation to take employment-related decisions in accordance with the law of the Fund. - b. by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant; - Section 1(b) covers retirement and other benefit plans maintained by the Fund, such as the Staff Retirement Plan (SRP), the Medical Benefits Plan (MBP), and the Group Life Insurance Plan. - Individuals who are not members of the staff but have rights under these plans may bring claims concerning decisions taken under or with respect to the plan (e.g., beneficiaries under the SRP and nonstaff enrollees in the MBP, such as a deceased staff member's widow who continues to participate in the MBP). - Such individuals may assert claims only with respect to decisions arising under or concerning the Fund's retirement or benefit plans; they may not challenge other types of administrative acts before the Tribunal. - The Tribunal would be authorized to review decisions relating to or arising under the SRP, whether of an individual or general nature; the SRP, Art. 7.1(d), permits the Tribunal to exercise such jurisdiction. *Report of the Executive Board — Administrative Tribunal of the IMF* ### 2. For purposes of this Statute, ### 2. For purposes of this Statute ### Definitions of scope: "administrative act" and "regulatory decision" - The expression "administrative act" shall mean "any individual or regulatory decision taken in the administration of the staff of the Fund." - The expression "regulatory decision" shall mean "any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund." - Findings and implications: - These definitions delineate the tribunal's subject-matter jurisdiction (competence ratione materiae). - The tribunal is competent to hear challenges to the legality of: - an "administrative act" (individual and regulatory decisions affecting terms and conditions of employment, including staff regulations set forth in the N Rules), and - "regulatory decisions" either directly or in the context of review of an individual decision based on the regulatory decision (examples include Executive Board decisions on compensation, pensions, tax allowance, benefits, job grading, the SRP, and management-promulgated staff rules such as the General Administrative Orders). - To invoke tribunal jurisdiction there must be a "decision" identified in the application filed by the staff member; typically individual administrative decisions are challenged after pursuing established administrative review channels, including recourse to the Grievance Committee. - The statute excludes from the tribunal's competence "resolutions taken by the organ establishing the tribunal, that is, the Board of Governors," permitting the Board of Governors to limit the tribunal's jurisdiction by resolution. ### Definition of "member of the staff" - The expression "member of the staff" shall mean: - (i) any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff; - (ii) any current or former assistant to an Executive Director; - (iii) any successor in interest to a deceased member of the staff as defined in (i) or (ii) above to the extent that he is entitled to assert a right of such staff member against the Fund. - Findings and implications: - Subsections (c)(i) and (c)(ii) include only staff on regular or fixed-term appointments and assistants to Executive Directors (clerical, secretarial, or technical assistants employed on the recommendation of an Executive Director). - Successors in interest (e.g., personal representatives of estates) may pursue unresolved claims (for example, termination payments) of deceased staff members. - The statute does not permit unsuccessful candidates or persons employed under contract to the Fund to bring claims before the tribunal. - The Staff Association is not entitled to bring actions in its own name before the tribunal. ### Procedural timing and gendered language - The calculation of a period of time: - shall not include the day of the event from which the period runs, and - shall include the next working day of the Fund when the last day of the period is not a working day. - Application: the period starts to run on the day after the date on which the challenged decision is rendered; if the last day falls on a weekend or holiday, the deadline is extended to the next working day.4 - The masculine pronoun shall include the feminine pronoun: - The statute applies equally to males and females while using the masculine pronoun for simplicity. ### Article III — Limits on tribunal powers and applicable law - First sentence: - "The Tribunal shall not have any powers beyond those conferred under this Statute." - Finding: the tribunal has limited jurisdiction; it may exercise competence only as conferred by the statute. - Second sentence: - "In deciding on an application, the Tribunal shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts." - Findings and implications: - The tribunal must apply internal Fund law (formal written sources and unwritten sources) and generally recognized principles of international administrative law on judicial review. - Formal sources include the Articles of Agreement, By-Laws and Rules and Regulations, and the General Administrative Orders; unwritten sources include the Fund's administrative practice and general principles such as the right to be heard (audi alteram partem). - The tribunal's standards of review should not exceed those applied by other international administrative tribunals; respect for organizational discretion is emphasized. - The Fund retains broad powers to alter terms and conditions of employment prospectively; limitations arise where the Fund has made formal commitments or consistent established practice creating vested expectations. Prospective alterations remain generally permissible, subject to reasonable justification in certain urgent circumstances.7,8 - Review standards: - Review of regulatory decisions is possible but narrow; the tribunal must respect principles protecting decision-making organs from judicial interference. - Review of individual managerial discretionary decisions is constrained; discretionary acts may be overturned only if shown to be "arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures."9 - Managerial assessments of professional qualifications (e.g., promotions, dismissals for unsatisfactory performance) are primarily managerial, not judicial, functions.10 - Third sentence: - "Nothing in this Statute shall limit or modify the powers of the organs of the Fund under the Articles of Agreement, including the lawful exercise of their discretionary authority in the taking of individual or regulatory decisions, such as those establishing or amending the terms and conditions of employment with the Fund." - Finding: the tribunal must respect separation of powers; it cannot substitute its judgment for those of legislative/ executive organs (including the Executive Board and Managing Director) in matters of policy or managerial discretion.11,12 - Fourth sentence: - "The Tribunal shall be bound by any interpretation of the Fund's Articles of Agreement decided by the Executive Board, subject to review by the Board of Governors in accordance with Article XXIX of that Agreement." - Findings and implications: - Interpretations of the Articles by the Executive Board are binding on the tribunal in the context of challenges to decisions, though such Board interpretations remain subject to review by the Board of Governors under Article XXIX. - Distinction: an Executive Board interpretation clarifies meaning; the tribunal retains authority to determine legality in individual cases but must make findings consistent with Board interpretations to avoid irreconcilable conflicts. ### Article IV — Tribunal determination of its own competence - "Any issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute." - Finding: - The tribunal has authority to determine its own competence within the terms of the statute, allowing interpretation but not expansion of its jurisdiction.14 *Report of the Executive Board* ### 1. When the Fund has established channels of administrative re- ### When the Fund has established channels of administrative review for the settlement of disputes ### Exhaustion of administrative review (Article V) - An application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review. - Where available channels of administrative review include a procedure established by the Fund for consideration of complaints and grievances of individual staff members concerning consistency with personnel regulations: - Administrative review is deemed exhausted when: - three months have elapsed since a recommendation on the matter has been made to the Managing Director and the applicant has not received a decision stating that the relief he requested would be granted; - a decision denying the relief requested has been notified to the applicant; or - two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - Where available channels of review do not include the procedure described above: - Administrative review is deemed exhausted when: - three months have elapsed since the request for review was made and no decision stating that the relief requested would be granted has been notified to the applicant; - a decision denying the relief requested has been notified to the applicant; or - two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - All channels of administrative review are deemed exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal. ### Time limits for filing (Article VI) - An application challenging the legality of an individual decision shall not be admissible if filed with the Tribunal more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision. - An application challenging the legality of a regulatory decision shall not be admissible if filed with the Tribunal more than three months after the announcement or effective date of the decision, whichever is later; provided that the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging the legality of an individual decision taken pursuant to such regulatory decision. - Practical interaction of Articles V and VI: - The three-month period for tribunal filing does not include time required for administrative review; it begins only after administrative review is fully exhausted and the Managing Director has decided whether to implement any committee recommendation. - Under current Grievance Committee rules, grievants have up to one year from the event giving rise to the grievance to bring an action; this year-long period precedes the three-month statute of limitations for the Tribunal. - Comparable periods in other international administrative tribunals are generally 60 days or 90 days; except in cases of death, the statute of limitations in other tribunals does not exceed 90 days. - Illustrative timelines (as provided): - If on January 2 the Grievance Committee made a recommendation to the Managing Director, the three-month period prescribed in Article V, Section 2 would run from January 3 to April 2, inclusive. - If the staff member exhausted administrative review on April 2, the three-month filing period before the Tribunal would run from April 3 to July 2. - If a favorable decision was received on April 2 but relief not forthcoming by June 2, the three-month filing period would run from June 3 to September 2, inclusive. - If a response denying the request was received on March 19, the application could be filed until June 20, inclusive. ### Discretion and effect of filing - In exceptional circumstances, the Tribunal may waive the time limits of Article VI at any time if it considers the delay justified (examples: extensive mission travel, prolonged illness, or other exigent personal circumstances). - A waiver may be requested before the deadline if the applicant anticipates inability to file on time, or after the deadline has passed; waiver requires a finding that the delay was justified. - The filing of an application does not suspend the implementation of the decision contested. - The Tribunal may, however, order interim measures if warranted by the circumstances of a particular case. - The rule prevents disruption of day-to-day administration and maintains effectiveness of disciplinary measures, including removal and termination. ### Settlement and termination of applications - No application may be filed or maintained after the applicant and the Fund have reached an agreement on the settlement of the dispute giving rise to the application. ### Composition, appointment, and removal of Tribunal members (Article VII) - Appointment and qualifications: - The President shall be appointed for two years by the Managing Director after consultation with the Staff Association and with the approval of the Executive Board. The President shall have no prior or present employment relationship with the Fund. - Two associate members and two alternates who have no prior or present employment relationship with the Fund shall be appointed for two years by the Managing Director after appropriate consultation. - The President, the associate members, and their alternates must be nationals of a member country of the Fund at the time of their appointments and must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. - Terms and reappointment: - Terms of service are two years. - The President and the associate members and their alternates may be reappointed in accordance with the procedures for appointment. - A member appointed to replace a member whose term has not expired shall hold office for the remainder of the predecessor's term. - Recusal and decision-making: - Any member who has a conflict of interest in a case shall recuse himself. - Decisions of the Tribunal shall be taken by the President and the associate members; if an associate member is recused or unable to hear a case, an alternate shall be designated by the President; if the President is unable to hear a case, the elder of the associate members shall act as President and be replaced by an alternate as associate member. - Removal: - The Managing Director shall terminate the appointment of a member who, in the unanimous opinion of the other members, is unsuited for further service. *Report of the Executive Board — Administrative Tribunal of the IMF (statute excerpts)* ### Section 4 prescribes that cases will ordinarily be decided by the Presi- ### imfat-1 - Section 4 prescribes that cases will ordinarily be decided by the President and the two associate members ### Composition, substitution, and removal of members - Section 4: cases will ordinarily be decided by the President and the two associate members. - Provision for temporary replacement by an alternate of an associate member who is unable to hear a case (for instance, due to illness or scheduling problems) or who, in his own judgment, decides to recuse himself in a particular case for reasons of conflict of interest. - If the President is unable to hear a case, he would be replaced by the elder of the two associate members, who would in turn be replaced by an alternate. - Section 5: the exclusive means by which a member could be removed from his position on the tribunal by the Managing Director. - Applies to any member of the tribunal (including the President). - Dismissal authorized only if all of the other members agreed that he was unfit for further service. - ARTICLE VIII: members of the Tribunal shall be completely independent in the exercise of their duties; they shall not receive any instructions or be subject to any constraint. - In the performance of their functions, they shall be considered as officers of the Fund for purposes of the Articles of Agreement of the Fund. - Confers upon President and other members the privileges and immunities enjoyed by officers and employees of the Fund under Article IX, Section 8 of the Articles of Agreement, including immunity from judicial process. - Provides basis for dismissal, on immunity grounds, of any lawsuit brought in a national court of a member country of the Fund by an unsuccessful applicant against a member of the tribunal with respect to the member's performance of his official duties. ### Administrative support, confidentiality, and funding - ARTICLE IX: - 1. The Managing Director shall make the administrative arrangements necessary for the functioning of the Tribunal. - 2. The Managing Director shall designate personnel to serve as a Secretariat to the Tribunal. - Such personnel, in the discharge of duties hereunder, shall be under the authority of the President. - They shall not, at any time, disclose confidential information received in the performance of their duties. - 3. The expenses of the Tribunal shall be borne by the Fund. - Administrative personnel would be assigned by the Managing Director but take instructions only from, and act under direction of, the President of the tribunal in performance of their duties. - Personnel would be independent from the Fund in performance of their duties and required to refrain from disclosing confidential information both outside and within the Fund (personnel information available only on a need-to-know basis). - Expenses borne by the Fund include fees paid to and expenses incurred by the President and the associate members in connection with performance of their duties. ### Evidence production, withholding, and presumptions - ARTICLE X: - 1. The Tribunal may require production of documents held by the Fund, except that the Managing Director may withhold evidence if he determines that introduction might hinder operation of the Fund because of the secret or confidential nature of the document. - Such determination shall be binding on the Tribunal. - Provided that the applicant's allegations concerning the contents of any document so withheld shall be deemed to have been demonstrated in the absence of probative evidence to the contrary. - The Tribunal may examine witnesses and experts, subject to the same qualification. - Practical effect: - Managing Director retains case-by-case authority to protect confidentiality; Tribunal bound by that determination. - If Managing Director withholds a document but applicant asserts its content, the applicant's assertion is prima facie evidence and creates a rebuttable presumption as to accuracy; Tribunal accepts the assertion unless other probative evidence contradicts it. - Tribunal may rely largely on written submissions; oral evidence and expert testimony remain available. ### Rules of Procedure, counsel, and case management - ARTICLE X (continued): - 2. Members shall, by majority vote, establish the Tribunal's Rules of Procedure. - Rules shall include provisions concerning: - a. presentation of applications and the procedure to be followed in respect to them; - b. intervention by persons to whom the Tribunal is open under Section 1 of Article II, whose rights may be affected by the judgment; - c. presentation of testimony and other evidence; - d. summary dismissal of applications without disposition on the merits; and - e. other matters relating to the functioning of the Tribunal. - The Rules are to be adopted by a majority of the entire membership of the tribunal (i.e., the President, the associate members, and their alternates). - Tribunal could adopt rules on filing procedures, obtaining information, oral proceedings, participation of amicus curiae, availability of judgments, and a procedure for summary dismissal of applications. - ARTICLE X, Section 3: - Each party may be assisted by counsel of his choice, other than members of the Fund's Legal Department, and shall bear the cost thereof, subject to Article XIV, Section 4 and Article XV. - Tribunal free to prescribe rules regarding signing of applications, presentation of oral argument, and other counsel-related matters. - Summary dismissal authorized consistent with other tribunals' rules for cases that are "clearly irreceivable or devoid of merit" or "manifestly abusive." ### Location, oral proceedings, and openness - ARTICLE XI: The Tribunal shall hold its sessions at the Fund's headquarters at dates to be fixed in accordance with its Rules of Procedure. - Frequency and scheduling determined by rules adopted by the tribunal. - ARTICLE XII: - The Tribunal shall decide in each case whether oral proceedings are warranted. - Oral proceedings shall be open to all interested persons, unless the Tribunal decides that exceptional circumstances require they be held in private. - Oral proceedings are somewhat rare; tribunals generally decide on written submissions. - Private sessions permitted where sensitive information or personal privacy issues are involved. ### Decision-making, finality, confidentiality, and remedies - ARTICLE XIII: - 1. All decisions of the Tribunal shall be by majority vote. - 2. Judgments shall be final, subject to Article XVI and Article XVII, and without appeal. - 3. Each judgment shall be in writing and shall state the reasons on which it is based. - 4. The deliberations of the Tribunal shall be confidential. - Dissents need not be registered; dissenting opinions possible. - No further recourse to the ICJ is available under the statute as adopted. - ARTICLE XIV (remedies and costs): - 1. If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision. - 2. When prescribing measures under Section 1 other than the payment of money, the Tribunal shall fix an amount of compensation to be paid to the applicant should the Managing Director, within one month of the notification of the judgment, decide, in the interest of the Fund, that such measures shall not be implemented. - The amount of such compensation shall not exceed the equivalent of three hundred percent (300%) of the current or, as the case may be, last annual salary of such person from the Fund. - The Tribunal may, however, in exceptional cases, when it considers it justified, order the payment of a higher compensation; a statement of the specific reasons for such an order shall be made. - Practical application: - If the Tribunal orders nonmonetary relief (e.g., reinstatement) the Managing Director may, within one month, choose monetary compensation instead. - Monetary award generally capped at three hundred percent (300%) of the individual's current or last salary from the Fund, subject to exceptional upward deviation with specific reasons. - 3. If the Tribunal concludes that an application challenging the legality of a regulatory decision is well-founded, it shall annul such decision. - Any individual decision adversely affecting a staff member taken before or after annulment and on the basis of such regulatory decision shall be null and void. - Annulment requires the Fund to take corrective measures for adversely affected staff; failure to do so may itself be challenged as an administrative act. - If a regulatory decision has been in effect by the organization for over three months, an application directly challenging its legality would not be admissible. - 4. If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant's counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates. *Report of the Executive Board — Administrative Tribunal of the IMF* ### Section 4 authorizes the tribunal to award reasonable costs, including ### imfat-1 - Section 4 authorizes the tribunal to award reasonable costs, including ### Authority to award costs (Section 4 / Article XIV) - The tribunal is authorized to award reasonable costs, including attorney's fees, to a successful applicant in an amount to be determined by the tribunal, taking into account the factors set forth in the provision. - Costs, apart from attorney's fees, that might fall within this provision could include items such as transportation to Washington, D.C. for applicants not working at Fund headquarters and the fees of expert witnesses who testify before the tribunal. - The tribunal may recommend an ex gratia payment by the organization for unsuccessful applicants whose claims nevertheless had prima facie merit or significance. - Comparable practice: the UNAT permits costs "if they are demonstrated to have been unavoidable, if they are reasonable in amount, and if they exceed the normal expenses of litigation before the tribunal." - Example of tribunals’ conservative practice: in Powell, UNAT Judgment No. 237 (1979), the applicant requested payment of costs in excess of $100,000 and was awarded $2,000 by the tribunal. ### Discretion and factors for determining “reasonable” costs - The tribunal exercises discretion whether, and to what extent, to award costs to a successful applicant. - Factors the tribunal is expected to consider: - The nature and complexity of the case. - The nature and quality of the work performed. - The amount of the fees in relation to prevailing rates. - Circumstances where an applicant succeeded only in one aspect while the bulk of claims were rejected, and where substantial unnecessary time was devoted to rejected claims. - Whether the effort and costs incurred by applicant’s counsel were disproportionate to the magnitude and nature of the issues. - The tribunal is authorized to award costs only to parties (i.e., an applicant or the Fund); it cannot award costs to other persons. ### Costs against the Fund and costs against applicants (Article XV) - Costs may be awarded against the Fund only where an applicant has succeeded in whole or in part (i.e., tribunal found in favor of all or a portion of the applicant's claims for relief). - The Tribunal may order that reasonable compensation be made by the applicant to the Fund for all or part of the cost of defending the case if it finds that: - a. the application was manifestly without foundation either in fact or under existing law, unless the applicant demonstrates the application was based on a good faith argument for an extension, modification, or reversal of existing law; or - b. the applicant intended to delay the resolution of the case or to harass the Fund or any of its officers or employees. - The amount awarded to the Fund may be collected by way of deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director, who may, in particular cases, waive the claim of the Fund against the applicant. - The award of costs against applicants does not include expenses incurred by the Fund in the operation of the tribunal. - Purpose: to deter pursuit of cases manifestly without factual basis or legal merit and prevent abuse of the review process, while not deterring good faith arguments for change in law. ### Enforcement and procedural safeguards - Enforcement mechanisms for costs awarded to the Fund: - Deductions from amounts owed by the Fund to the applicant (such as salary or separation payments). - Other means as management deems appropriate if the applicant is not owed any money by the Fund, to preclude possibility of setoff. - The tribunal must hear the case and dispose of the matter on the merits unless an application is summarily dismissed; a rule permitting summary dismissal would allow disposal of clearly irreceivable cases to minimize time and expense. ### Revision, correction, and publication of judgments (Articles XVI–XVIII) - Article XVI (revision): - A party may request revision of a judgment within a period of six months after that party acquired knowledge of a discovered fact which, by its nature, might have had a decisive influence on the judgment and which at the time the judgment was delivered was unknown both to the Tribunal and to that party. - Purpose: prevent presentation after decision of material facts known to a party before decision; permit reopening if a material fact is discovered after decision to revise judgment in light of that fact. - Article XVII (interpretation/correction): - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. - The tribunal may act on its own initiative or upon application by a party to interpret or correct typographical or arithmetical errors and to interpret its own judgments where terms are unclear or incomplete. - Article XVIII (filing and availability): - The original of each judgment shall be filed in the archives of the Fund; a copy attested by the President shall be delivered to each of the parties concerned. - A copy shall also be made available by the Secretariat on request to any interested person, provided the President may decide that identities or any other means of identification of the applicant or other persons mentioned in the judgment shall be deleted from such copies. - Judgments are to be made available to interested persons and would be in the public domain and could be cited or published; the President may conceal identities where privacy or confidentiality concerns warrant. ### Temporal scope and transitional provisions (Article XX) - The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if administrative review channels concerning that act have been exhausted only after that date. - For decisions taken between October 15, 1992 and the establishment of the Tribunal, an application shall be admissible only if filed within three months after the establishment of the Tribunal. - For purposes of the transitional provision, the Tribunal shall be deemed established when the staff has been notified by the Managing Director that all the members of the Tribunal have been appointed. - Result: administrative acts taken on or after October 15, 1992 are reviewable by the tribunal; acts taken before that date are not reviewable even if review was pending at the tribunal's effective starting date. ### Extension of competence and institutional arrangements (Article XXI) - The competence of the Tribunal may be extended to any international organization upon terms established by a special agreement with each such organization by the Fund. - Each special agreement shall provide that: - The affiliating organization shall be bound by the judgments of the Tribunal and responsible for payment of any compensation awarded by the Tribunal in respect of a staff member of that organization. - The agreement shall include provisions concerning the organization's participation in the administrative arrangements for the functioning of the Tribunal and its sharing of expenses. - The affiliating organization would not have authority with respect to appointment of the tribunal's members or amendment of the governing statute. ### Procedure for adoption of the proposed statute and voting timeline - The Executive Board recommends the statute enter into force as of October 15, 1992, the date on which the Executive Board formally decided to transmit the report and resolution to the Board of Governors. - The Executive Board requests Governors to vote without meeting pursuant to Section 13 of the By-Laws. - To be valid, votes must be received at the seat of the Fund before 6:00 p.m., Washington time, on December 21, 1992. - The resolution will be adopted if replies are received from a majority of the Governors exercising a majority of the total voting power and if a majority of the votes is cast in favor of the resolution; the resolution must be voted on as a whole. *Report of the Executive Board (text of proposed Statute and accompanying Report).* ### Section 13 of the By-Laws of the Fund; ### Section 13 of the By-Laws of the Fund ### Adoption - The Board of Governors, noting the Report of the Executive Board, RESOLVES that the proposed Statute of the Administrative Tribunal of the International Monetary Fund is hereby adopted. ### Rules of Procedure — General - Rules apply to the Administrative Tribunal of the International Monetary Fund ("Tribunal"). - Rules are subject to: - the Fund's Articles of Agreement; - the Statute of the Tribunal. - Masculine pronoun includes the feminine pronoun. - Footnote: These Rules entered into force on February 18, 1994 and were amended on August 31, 1994. ### Official Language - The working language of the Tribunal shall be English. ### President - The President shall: - preside over the consideration of cases by the Tribunal; - direct the Registry of the Tribunal in the performance of its functions; - prepare an annual report on the activities of the Tribunal; - perform the functions entrusted to the President by these Rules of Procedure. ### Registry - Under the President's authority, the Registrar shall: - receive applications instituting proceedings and related documentation of the case; - transmit all documents and make all notifications required in connection with cases before the Tribunal; - make for each case a dossier recording all actions taken, their dates, and the dates on which any document or notification are received in or dispatched from the Registrar's office; - attend hearings, meetings, and deliberations of the Tribunal; - keep minutes of hearings and meetings as instructed by the President; - expeditiously perform functions entrusted by the Rules and carry out tasks assigned by the President. ### Recusal - Pursuant to Article VII, Section 3 of the Statute, a member shall recuse himself: - in cases involving persons with whom the member has a personal, familial or professional relationship; - in cases concerning which he has previously been called upon in another capacity, including as advisor, representative, expert or witness on behalf of a party; - if other circumstances exist such as to make the member's participation seem inappropriate. - Any member recusing himself shall immediately inform the President of the Tribunal. ### Counsel - In accordance with Article X, Section 3 of the Statute, each party may at any time choose to be assisted by counsel, whose designation shall be notified to the Registrar. ### Applications — Filing Requirements and Procedure - Applications shall be filed by the Applicant or his duly authorized representative, following the form attached as Annex A; representation form is Annex B. - Each application must contain: - the name and official status of the Applicant; - the name of the Applicant's representative, if any, and whether such representative or another person shall act as counsel; - the decision being challenged, and the authority responsible for the decision; - the channels of administrative review pursued and results thereof; - the reasons why the Applicant believes the decision is illegal; - a statement of the supporting facts; - the relief or remedy sought, including the amount of compensation, if any, claimed and specific performance requested. - Applicant shall attach as annexes all documents cited in original or unaltered copy and complete text unless obviously irrelevant; include copy of any Grievance Committee report and recommendation. Non-English documents require English translation. - Four additional copies of the application and attachments shall be submitted to the Registrar. - Application shall satisfy Article XX and be submitted within the time limits prescribed by Article VI of the Statute. - If application does not fulfill requirements, Registrar shall advise Applicant and give a reasonable period, not less than fifteen days, to correct or add. If corrected within that period, filing is considered made on original date. Otherwise the Registrar shall: - notify Applicant that the period to make changes has been extended, indicating its length; or - make necessary corrections when defects do not affect substance; or - by order of the President, notify Applicant that the submission does not constitute an application and cannot be filed as such. - Upon ascertaining formal requirements are met, Registrar shall notify the Fund of the application and transmit a copy to the General Counsel. - Application must be signed on the last page by Applicant or representative; if Applicant incapacitated, signature by legal representative. ### Answer (Fund's Response) - Once application is notified to the Fund, the Fund shall answer in writing and submit any additional documentary evidence within forty-five days unless the President sets another time limit upon request. - The Fund's answer shall be submitted to the Tribunal and Applicant through the Registrar and shall include annexes as required by Rule VII. - The answer shall be signed on the last page by the Fund's representative. - Four additional copies of the answer and attachments shall be submitted to the Registrar. - Upon ascertaining formal requirements are met, Registrar shall transmit a copy of the Fund's answer to the Applicant. ### Reply (Applicant) - Applicant may file a written reply within thirty days from the date the answer is transmitted, unless the President sets another time limit upon request. - Complete texts of documents referred to in the reply shall be annexed per Rule VII. - Requirements of Rule VII, Paragraphs 4 and 8, apply to the reply. - Upon formal compliance, Registrar shall transmit a copy of the reply to the Fund. ### Rejoinder (Fund) - The Fund may file a written rejoinder within thirty days of receiving the Applicant's reply, unless the President sets another time limit upon request. - Complete texts of documents referred to shall be annexed per Rule VII. - Requirements of Rule VIII, Paragraphs 2 and 3, apply to the rejoinder. - Four additional copies required as in Rule VIII. - Upon formal compliance, Registrar shall transmit a copy of the rejoinder to the Applicant. - After the rejoinder has been filed, no further pleadings may be received, without prejudice to Rule XI. ### Additional Pleadings - In exceptional cases, the President may, on his own initiative or at request of either party, call for additional written statements or documents within a period he shall fix; documents to be original or unaltered copy with necessary translations. - Relevant procedural requirements of Rule VII or Rule VIII shall apply to such submissions. - Registrar shall transmit received materials to the other party or parties. ### Summary Dismissal - Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if clearly inadmissible. - The Fund may file such a motion within thirty days of its receipt of the application. Filing the motion suspends the Fund's time to answer until the motion is acted on. - Complete texts of documents referred to in the motion shall be annexed per Rule VII; Rule VIII, paragraphs 2 and 3 apply to the motion. - Registrar shall transmit a copy of the motion to the Applicant upon formal compliance. - Applicant may file a written objection within thirty days from transmission of the motion. - Documents referred to in the objection shall be annexed per Rule VII; requirements of Rule VII, Paragraphs 4 and 8 apply. - Upon formal compliance, Registrar shall transmit the objection to the Fund. - No further pleadings on a motion for summary dismissal unless the President requests them. ### Oral Proceedings - Oral proceedings held if Tribunal decides they are necessary; Tribunal shall hear oral arguments and may examine parties and counsel. - Before oral proceedings, each party shall inform the Registrar of names and descriptions of witnesses and experts to be heard and points to which evidence refers; Tribunal may also call witnesses and experts. - Tribunal decides on applications to hear witnesses or experts and determines sequence of oral proceedings in consultation with parties; may accept written replies from witnesses unable to appear, with right of parties to comment. - Parties or counsel may, under direction of the President, question witnesses and experts; Tribunal may also examine them. - Witness declaration: "I solemnly declare upon my honor and conscience that my testimony shall be the truth, the whole truth and nothing but the truth." - Expert declaration: "I solemnly declare upon my honor and conscience that my testimony will be in accordance with my sincere belief." - Tribunal may disregard evidence considered irrelevant, frivolous, or lacking probative value. - Tribunal may limit oral testimony where written documentation is adequate. - President empowered to issue orders and decide matters necessary for orderly disposition, including rulings on objections concerning examination of witnesses or introduction of documentary evidence. ### Intervention - Any person to whom the Tribunal is open under Article II, Section 1 of the Statute may, before closure of written pleadings, apply to intervene on ground that a right may be affected by the judgment. - Rules regarding preparation and submission of applications apply mutatis mutandis to interventions. - Upon formal compliance, Registrar shall transmit application for intervention to Applicant and to the Fund; each may present views on intervention within thirty days. - After that deadline, the President, in consultation with other Tribunal members, shall decide whether to grant intervention. If admitted, intervenor participates as a party. - To inform the Fund community of proceedings, the Registrar, upon notification of an application to the Fund, shall, unless the President decides otherwise, issue a summary of the application without disclosing the Applicant's name for circulation within the Fund. ### Amicus Curiae - The Tribunal may, at its discretion, permit any persons, including duly authorized representatives of the Staff Association, to communicate their views to the Tribunal. ### Time Limits — Calculation - Time limits refer to calendar days, exclude the day of the event from which the period runs, and include the next working day of the Fund when the last day is not a working day. ### Production of Documents - Applicant may, before closure of pleadings, request Tribunal to order production of documents or other evidence denied by the Fund, accompanied by relevant documentation of request and denial; Fund shall have opportunity to present views. - Tribunal may reject requests if documents are clearly irrelevant, compliance unduly burdensome, or would infringe privacy; Tribunal may examine requested documents in camera for privacy assessment. - Tribunal may, subject to Article X, Section 1 of the Statute, order production of documents or other evidence in the Fund's possession and may request information deemed useful to its judgment. - When Tribunal is not in session, the President shall exercise powers in this Rule. ### Judgments - Deliberations shall be in private; judgment adopted by majority vote. - Once final text is approved and adopted, judgment shall be signed by the President and the Registrar and shall contain names of members who took part in the decision. - Any member differing as to grounds or conclusions, or dissenting, may append a separate or dissenting opinion. - Judgment and any appended opinions shall be transmitted to the parties and to amici curiae and shall be available to interested persons upon request to the Registrar, who shall arrange for their publication. - Clerical and arithmetical errors in the judgment may be corrected by the Tribunal. ### Revision of Judgments - A party may request revision only if a fact or document is discovered which might have had a decisive influence on the Tribunal's judgment and which was unknown to both Tribunal and the applying party at the time of the judgment, and such ignorance was not the responsibility of that party. - Revision must be requested within thirty days from discovery of the fact or document and, in any event, within one year from the date the party was notified of the judgment unless, upon request, the President sets another time limit. - Procedure in Rules VIII through XI shall apply, mutatis mutandis, to a request for revision. *Administrative Tribunal of the International Monetary Fund — Rules of Procedure (Section 13 of the By-Laws of the Fund).* ### 4. The Tribunal shall decide whether to admit the application for ### imfat-1 - 4. The Tribunal shall decide whether to admit the application for ### Revision and Judgments Procedure - "The Tribunal shall decide whether to admit the application for revision." - If admitted, "the Tribunal shall pass judgment on the matter at issue in accordance with these Rules." ### RULE XX — Interpretation of Judgments - 1. In accordance with Article XVII of the Statute, after a judgment has been rendered, "a party may apply to the Tribunal requesting an interpretation of the operative provisions of the judgment." - 2. "The application shall be admissible only if it states with sufficient particularity in what respect the operative provisions of the judgment appear obscure or incomplete." - 3. "The Tribunal shall, after giving the other party or parties a reasonable opportunity to present its or their views on the matter, decide whether to admit the application for interpretation." - If admitted, "the Tribunal shall issue its interpretation, which shall thereupon become part of the original judgment." ### RULE XXI — Miscellaneous Provisions - 1. "The President shall, in consultation with the other members of the Tribunal, fix the dates of the Tribunal's sessions." - 2. "The Tribunal, or, when the Tribunal is not in session, the President after consultation where appropriate with the members of the Tribunal may in exceptional cases modify the application of these Rules, including any time limits thereunder." - 3. "The Tribunal or, when the Tribunal is not in session, the President may deal with any matter not expressly provided for in the present Rules." ### FORM OF APPLICATION (ANNEX A) — Required Information and Procedure - I. Information concerning the personal status of the Applicant: - 1. "full name of Applicant:" - 2. If Applicant's claim is based on the employment rights of another person: - (a) "name and official status of person whose rights are relied upon:" - (b) "the relation of Applicant to person whose status entitles Applicant to come before the Tribunal:" - 3. "address for purposes of the proceedings: telephone number: fax number:" - II. Official status of Applicant or of the person whose status entitles Applicant to come before the Tribunal: - 1. "Beginning and ending dates of each period of employment with the Fund:" - 2. "Employment status at time of decision contested (whether in active service or in retirement):" - 3. "Type of appointment:" - III. "Decision being challenged, date of the decision, and the authority responsible for the decision:" - IV. "Channels of administrative review of the decision that Applicant has pursued and the results:" - V. "Reasons why Applicant challenges the decision and its legality:" - VI. "Statement of supporting facts:" - VII. "The relief or remedy that is being sought, including the amount of compensation, if any, claimed by Applicant and/or the specific performance of any obligation which is requested:" - VIII. "Annexes to be attached pursuant to Rule VII, para. 3 of the Tribunal's Rules of Procedure:" - Quoted Rule text: "3. The Applicant shall attach as annexes all documents cited in the application in an original or in an unaltered copy and in a complete text unless part of it is obviously irrelevant. Such documents shall include a copy of any report and recommendation of the Grievance Committee in the matter. If a document is not in English, the Applicant shall attach an English translation thereof." - IX. "Any additional information that Applicant wishes to present to the Tribunal." ### FORM OF APPOINTMENT (ANNEX B) — Representative and Counsel - "APPOINTMENT OF REPRESENTATIVE (AND COUNSEL)*" - Form fields and instructions: - Designation of representative: "[Name] [Address] as my duly authorized representative [and counsel] to file/maintain (circle as appropriate) an application with the IMF Administrative Tribunal." - Authorization: representative "[is] authorized to sign pleadings, appear before the Tribunal, and take all other necessary action in connection with the pursuance of the case on my behalf." - "This designation shall take effect immediately and shall remain in effect until revoked by me and the Tribunal has been so informed in writing." - "Date" and "Signature" fields. - Asterisk note: "*Delete the brackets if your representative will also assist you as counsel. If not, delete the words 'and counsel' in the caption and below.*" ### Administrative Details and Publication Identifiers - Header: "ADMINISTRATIVE TRIBUNAL OF THE IMF" - Publication lines present: - "International Monetary Fund Administrative Tribunal Reports Volume V 2006" - "International Monetary Fund Washington, D.C. 2009" - Office contact block: "Office of the Registrar International Monetary Fund Administrative Tribunal 700 19th Street, N.W., HQ1-3-544 Washington, DC 20431 Fax: (202) 623-6016" - Telephone: "(202) 623-6008" --- _Source: https://www.imf.org/-/media/files/imfat/imfat-1.pdf_