## APPENDIX — DEVELOPMENTS IN THE JURISPRUDENCE OF THE IMF ADMINISTRATIVE TRIBUNAL: 2000–2002 ## Source details **Canonical URL:** [APPENDIX — DEVELOPMENTS IN THE JURISPRUDENCE OF THE IMF ADMINISTRATIVE TRIBUNAL: 2000–2002](https://www.imf.org/-/media/files/imfat/imfat-2.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/imfat-2.pdf.md) - [Structured JSON version](/-/media/files/imfat/imfat-2.pdf.json) --- ### Tribunal and volume scope - Volume II contains the Judgments and Orders of the International Monetary Fund Administrative Tribunal rendered during the period 2000–2002. - No decisions were issued during calendar year 2000; the volume begins with Judgment No. 2001-1. - During 2000–2002 the Tribunal rendered five Judgments and one Order. - Preface signed by Celia Goldman, Registrar, Washington, D. C., September 2008. ### Tribunal composition and remit (2000–2002) - Tribunal established in 1994; function: independent judicial forum for resolution of employment disputes between the IMF and its staff members; jurisdiction also covers enrollees in and beneficiaries under staff benefit plans (Statute, Article II (1)(b)). - Judges and terms: - President, two Associate Judges and two Alternate Judges, each appointed for two-year terms and eligible for reappointment (Statute, Article VII (1)(a) and (b), and (2)). - Judges must possess qualifications required for appointment to high judicial office or be jurisconsults of recognized competence (Statute, Article VII (1)(c)). - Composition during 2000–2002: - Judge Stephen M. Schwebel, President (United States) - Associate Judge Nisuke Ando (Japan) - Associate Judge Michel Gentot (France) - Alternate Judge Georges Abi‑Saab (Egypt) - Alternate Judge Agustín Gordillo (Argentina) ### Governing law and standards of review - Article III of the Statute: the Tribunal applies the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review. - Standards for overturning discretionary acts (Commentary and jurisprudence): - 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. - The Tribunal applies a “rational nexus” test for nondiscrimination claims: classifications must be rationally related to the objective of the classification. ### Developments in substantive law (selected themes and holdings) - New issues adjudicated during 2000–2002 included: - Interpretation and application of SRP provisions permitting the Fund to give effect to orders for family support and division of marital property. - Conflict-of-laws questions between domestic court judgments and Fund internal law resolved by reference to the Fund’s “public policy” (i.e., internal law of the Fund) (Mr. “P” (No. 2), IMFAT Judgment No. 2001-2 (November 20, 2001)). - Invocation of nondiscrimination principle as a constraint on management’s discretionary authority in allocation of differing employment benefits (Mr. “R”, IMFAT Judgment No. 2002-1 (March 5, 2002); Ms. “G” and Mr. “H”, IMFAT Judgment No. 2002-3 (December 18, 2002)). - The Tribunal applied and explained the “rational nexus” test and emphasized deference to managerial discretion subject to substantive limits. ### SRP Section 11.3, Administration Committee Rules, and jurisdiction - SRP Section 11.3 and 1999 Rules under Section 11.3: - Permits a spouse or former spouse of a participant or retired participant to request the Administration Committee to give effect to domestic court orders for spouse or child support or division of marital property. - Rules permit withholding and escrow of payments where the Administration Committee finds a “bona fide dispute” about the efficacy, finality or meaning of an order; escrow deposit can be in an interest-bearing account pending resolution. - Section 7.2(b) of the Staff Retirement Plan provides that Administration Committee determinations as to whether any person has a right to any benefit under the Plan are subject to review by the Administrative Tribunal. - Jurisdictional holdings: - The Tribunal has jurisdiction ratione materiæ over SRP Administration Committee decisions (Statute, Article II (1)(b)). - Intervention and beneficiary rights: a spouse or former spouse who may claim rights under SRP Section 11.3 may be considered a “beneficiary under a Fund benefit plan” for purposes of challenging an Administration Committee decision (admission of Ms. “Q” as Intervenor in Mr. “P” (No. 2)). ### Case study — Judgment No. 2001-2 (Mr. “P” (No. 2)) — SRP escrow decision and conflict of laws - Facts and procedural chronology (selected dates preserved exactly as in source): - July 17, 1998: Pension Committee approved disability retirement effective August 1, 1998. - July 22, 1998: Mr. “P” obtained a “first revocable divorce” in Egypt; registered July 25, 1998. - March 2, 2000: Maryland Circuit Court entered Judgment of Absolute Divorce awarding monetary relief of $95,016.50 and a continuing share of the defendant’s ongoing pension entitlement equal to 50% of the marital portion (56%) of all monies due the Defendant, among other orders; judgment entries included amounts $38,000.00 (pendente lite arrears), $27,000.00 (attorney’s fees), and total judgment $160,016.50. - March 9, 2000: Intervenor requested Administration Committee give effect to Maryland judgment. - July 27, 2000: Administration Committee decided to withhold and place in escrow 28% of the early retirement pension (28% equals 50% of marital portion 56%), depositing payments in escrow until dispute resolved. - November 30, 2000: Administration Committee reaffirmed withholding; notified Mr. “P” of right to file with Tribunal within three months. - February 28, 2001: Mr. “P” filed Application with the Tribunal. - November 20, 2001: Tribunal issued Judgment No. 2001-2. - Tribunal holdings: - The Tribunal treated the Maryland Judgment as valid under Maryland law and the Egyptian divorce as valid under Egyptian law as starting points; it applied the Fund’s internal law (public policy) embodied in SRP Section 11.3 and the Administration Committee Rules to determine whether the Administration Committee erred. - The Tribunal concluded the Administration Committee’s decision was “understandable” but “in error and must be rescinded.” - Remedy ordered: - Rescission of the Administration Committee’s escrow decision. - Payment to Intervenor of the amount then held in escrow, including interest. - Future payments directed to Intervenor of the proportion (28%) of the Applicant’s pension as requested. ### Admissibility, standing, and jurisdiction ratione personae (Estate of Mr. “D”, Judgment No. 2001-1) - Jurisdiction ratione personae: - Tribunal held jurisdiction extends to a successor in interest to a non‑staff member enrollee in the Fund’s Medical Benefits Plan (Estate of Mr. “D”). - Standing/“adversely affect[ed]” requirement (Article II (1)): - The Tribunal interpreted “adversely affect[ed]” as requiring an actual stake in the controversy; this was applied in Ms. “G” (eligibility for expatriate benefits) and other cases. - Time bar and ratione temporis (Article XX): - Article XX (1) bars challenges to administrative acts taken before October 15, 1992. - Tribunal held later Executive Board reconsiderations or reaffirmations of prior policy constitute administrative acts within the Tribunal’s temporal jurisdiction (applied in Ms. “G”: 1985 policy reaffirmed in 1994 and materially refashioned in 2002). - Exhaustion (Article V) and exceptional circumstances: - Article V requires exhaustion of available channels; the Tribunal decides for itself whether exhaustion occurred and may find “exceptional circumstances” to excuse failure to seek earlier review, but such circumstances “should not be lightly found.” - In Estate of Mr. “D”, the Tribunal denied a Motion for Summary Dismissal and exercised discretion to find exceptional circumstances excusing delay given the Fund’s conduct and procedural ambiguities. ### GAO No. 31 (Rev. 3) and Grievance Committee procedure — empirical data and rules - GAO No. 31, Rev. 3 (1995) provides procedure for administrative review culminating in Grievance Committee recommendation to Managing Director. - Persons entitled to Grievance Committee review (Section 7.01.1) include: - (i) any person currently or formerly employed whose letter of appointment states membership of staff; - (ii) any successor in interest to a deceased staff member; - (iii) any enrollee in a benefit plan maintained by the Fund. - Time limits and procedural steps for benefits (Sections 6.03–6.06, 7.03) include: - Initial request to division chief within three months after informing of intended application of benefit; - Division chief 15 days to respond; appeal to Director within 30 days; Grievance Committee submission timelines specified. - Time-limit extensions and discretionary waivers (Sections 6.07 and 6.07.1) permit day-for-day extensions for recognized travel or leave and discretionary extensions by consent. - Empirical data (1980–end of 2000): - Approximately sixty-two grievances filed from 1980 through end of 2000. - Of these, only three have been dismissed for failure to meet exhaustion requirements under GAO No. 31. - Sixteen grievances related to benefit questions of any kind. - Five benefit-related grievances concerned the Medical Benefits Plan. - No record of non-staff member grievances related to benefits; no successor in interest to a deceased staff member had filed a grievance since the 1995 revision permitted such filings. ### Judgment No. 2001-1 (Estate of Mr. “D”) — Medical evacuation and exhaustion - Factual highlights: - May–June 1998: medical evacuation undertaken; cost approximately $50,000. - Applicant later received a late reimbursement of $392 offered by Fund; Applicant rejected it as a “token” offer. - Applicant filed Application with Tribunal October 31, 2000; procedural history includes Fund Motions for Summary Dismissal and multiple pleadings and Requests for Information. - Procedural holdings: - President exercised Rule XVII and Rule XXI authorities to manage document requests and time limits; a Motion for Summary Dismissal suspends the period for answering the Application. - The Tribunal may request information it deems useful and may find “exceptional circumstances” to excuse failures to exhaust administrative remedies where justified. ### Nondiscrimination doctrine and application — Mr. “R” (Judgment No. 2002-1) and Ms. “G” (Judgment No. 2002-3) - Nondiscrimination as constraint on managerial discretion: - The Tribunal recognized nondiscrimination serves as a substantive limit on discretionary authority; distinctions must be supported by evidence establishing a “rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” - Mr. “R” (March 5, 2002): - Applicant (Director of the JAI in Abidjan) sought overseas assignment allowance and increased housing allowance equal to Resident Representative entitlements. - Management granted hardship allowance retroactively but denied overseas assignment allowance (30 percent of salary historically; reduced to 20 percent for assignments on or after February 15, 2001) and higher housing allowance. - Applicant calculated the difference in his case as US$114,000 per annum (calculation not contested). - Tribunal findings: - Distinctions between Office Directors and Resident Representatives were rationally related to legitimate objectives (recruitment incentives, differing functions and representational roles). - Although granting an exception might have been reasonable for the individual, management’s refusal to make an exception was within managerial discretion and not an abuse. - Application denied. - Ms. “G” and Mr. “H” (December 18, 2002): - Background: historical evolution from nationality test (1947–1985) to visa-status test (1985), with “grandfathering” for incumbents; Executive Board reaffirmed in 1994; 2002 amendment (Staff Bulletin No. 02/2, effective May 1, 2002) extended expatriate benefits to current LPRs conditioned on relinquishing LPR status for G-4. - Applicants alleged discrimination because the visa test disadvantages LPR holders and older staff relative to G-4 staff and grandfathered incumbents. - Tribunal holdings: - Temporal jurisdiction: Board reconsiderations in 1994 and amendment in 2002 were administrative acts within Tribunal’s temporal jurisdiction. - Merits: Tribunal assessed rational nexus between policy goals (compensation for costs of maintaining home ties; facilitating repatriation; recruitment and retention of diverse staff) and visa-based allocation method. - Tribunal concluded the visa criterion and the 2002 amendment were rationally related to policy goals; LPR status reflects advantages inconsistent with fixed intention to repatriate; LPR status is not a Fund “benefit” but a feature of U.S. immigration law. - The Tribunal denied applications of Ms. “G” and Intervenor Mr. “H”. - Tribunal noted the expatriate benefits policy does not expressly empower Administration to grant exceptions; managerial discretion does not extend to granting exceptions inconsistent with essential objectives of Executive Board policy. ### DRE (Discrimination Review Exercise) and Judgment No. 2002-2 (Ms. “Y” (No. 2)) - DRE design and purpose: - One-time ad hoc alternative dispute resolution mechanism to address past discrimination (1996–1997 memoranda); intended to provide forward-looking remedies and operate outside GAO No. 31 strict time bars. - Reviews conducted by external consultants with Fund staff; confidential, informal, not replacing formal grievance procedures. - Procedural and evidentiary findings in Ms. “Y”: - Applicant alleged DRE defects and biased investigation; sought de novo merits review and remedies including reinstatement, promotion to A13, back pay, compensatory damages and counsel fees. - Grievance Committee issued Recommendation and Report April 10, 2001; Managing Director accepted recommendation April 18, 2001. - Tribunal held DRE was a valid exercise of discretionary authority but examined whether application of DRE procedures in Ms. “Y”’s case was consistent and whether team conclusions were reasonably supported. - Review team interviewed 22 persons; Tribunal found procedures followed as set out in memoranda and conclusions reasonably supported by evidence. - Tribunal concluded no abuse of discretion, no bias affecting outcome; Application denied (Judgment No. 2002-2, March 5, 2002). ### Remedies and monetary limits - Article XIV remedial powers: - For individual decisions found unlawful, Tribunal shall prescribe rescission and any measures required to correct effects. - When prescribing non-monetary measures, Tribunal may fix an amount of compensation payable if Managing Director elects not to implement, capped at three hundred percent (300%) of the current or last annual salary, except in exceptional cases with stated reasons. - Tribunal may award reasonable costs of applicant’s counsel where application is well-founded; it may order compensation by applicant to Fund for manifestly unfounded applications. - Examples of remedies ordered in Judgments: - Mr. “P” (No. 2): rescission of escrow decision; payment of escrowed amounts and ongoing 28% pension payments to Intervenor. - Estate of Mr. “D”: proceedings continued; later withdrawn by Applicant pursuant to parties’ agreement (Order No. 2001-1). ### Procedural rules and President’s powers (selected) - Rules of Procedure highlights: - Rule X (Administration Committee Rules) and Article V (Statute) define exhaustion for SRP Committee decisions and administrative review triggers (three months, two months, notice rules). - Rule XI: President may call for additional pleadings in exceptional cases. - Rule XII: Fund may move for Summary Dismissal; filing of motion suspends answering period. - Rule XIV: Intervention permissible by persons to whom Tribunal is open under Article II, Section 1, whose rights “may be affected by the judgment”; admission decisions by President in consultation with members. - Rule XVII: Tribunal may order production of documents, may examine documents in camera for privacy; President exercises powers when Tribunal not in session. - Rule XIII: Tribunal decides whether oral proceedings are warranted; oral proceedings held only if necessary for disposition. - President’s procedural practice (illustrative): - Repeated exercise of Rule XI and Rule XVII to manage additional statements, Requests for Information, and document production. - Admission of Intervenors (Ms. “Q” in Mr. “P” and Mr. “H” in Ms. “G”) where statutory criteria satisfied and rights “may be affected.” ### Key numerical and temporal figures (verbatim preservation) - Tribunal activity and dates: - Period covered: 2000–2002. - Judgment dates cited: March 30, 2001; November 20, 2001; March 5, 2002; December 18, 2002. - Procedural time limits and caps: - Three months: typical filing limitation after exhaustion (Article VI). - Two months: trigger in Article V, Section 2 and Section 3 for implementation delays. - Thirty (30) working days: participant response period under 1999 SRP Rules of the Administration Committee. - Ninety (90) days: Administration Committee review period under Rule VIII (4). - Fifteen (15) days: division chief response time under GAO No. 31, Section 6.03. - Sixty (60) days and 30 percent: overseas assignment allowance rate historically; reduced to 20 percent for assignments on or after February 15, 2001 (text preserved: “The overseas assignment allowance is calculated at 30 percent of salary (capped at the mid-point of the B-1 salary range). For assignments beginning on or after February 15, 2001, the allowance has been reduced to 20 percent of salary.”). - Compensation cap: three hundred percent (300%) of current or last annual salary (Article XIV, Section 2). - Empirical grievance counts: approximately sixty-two grievances filed from 1980 through end of 2000; three dismissed for failure to meet exhaustion requirements; sixteen benefit-related grievances; five MBP-related grievances. - Case-specific financial figures (verbatim): - Mr. “P” / Maryland Judgment monetary items: $95,016.50 (monetary award), $38,000.00 (pendente lite arrears), $27,000.00 (attorney’s fees), $160,016.50 (total judgment); Intervenor entitlement: 28% of pension (50% of 56% marital portion). - Estate of Mr. “D”: alleged evacuation cost approximately $50,000; later offered $392 reimbursement. - Mr. “R” benefit differential: Applicant calculated difference as US$114,000 per annum (calculation not contested). - SRP Section 11.3 benefit limits preserved verbatim: “50 percent of the portion of the participant’s or retired participant’s benefit that is attributable to his eligible service during the couple’s marriage” and “66 2/3 percent of the benefit payable to the participant or retired participant whenever the obligation or obligations to which the court order or decree relates includes child support…” - U.S. immigration/G-4 provision cited: reacquisition of LPR status after 15 years in G-4 status (text preserved: “only time spent in G-4 status in the United States will count toward the 15 years required for reacquisition of LPR status”). - Costs per eligible staff member for expatriate benefits: approximately $11,000 per eligible staff member (circa May 2001 data). - Tribunal procedural statistics and dates preserved as presented in judgments. *Source: DEVELOPMENTS IN THE JURISPRUDENCE OF IMF ADMINISTRATIVE TRIBUNAL: 2000–2002, IMF Administrative Tribunal Reports, Vol. II — Appendix.* ### APPENDIX 2 ### APPENDIX ### Preface and Volume Scope - Volume II of International Monetary Fund Administrative Tribunal Reports contains the Judgments and Orders of the International Monetary Fund Administrative Tribunal rendered during the period 2000–2002. - No decisions were issued by the Tribunal during the calendar year 2000; the volume begins with Judgment No. 2001-1. - The volume includes: - An introductory chapter, “Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2000–2002.” - A detailed topical Index of the Judgments and Orders near the end of the volume. - Republished as 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 Administrative Tribunal. - Preface signed by Celia Goldman, Registrar, Washington, D. C., September 2008. ### Background and Tribunal Composition - The International Monetary Fund Administrative Tribunal (“IMFAT” or “Tribunal”) was established in 1994. - Function: independent judicial forum for resolution of employment disputes between the International Monetary Fund (“IMF” or “Fund”) and its staff members; jurisdiction also covers enrollees in and beneficiaries under staff benefit plans challenging administrative acts arising under such plans (Statute, Article II (1)(b)). - An Applicant may challenge the legality of an “individual” or “regulatory” decision by which he has been “adversely affect[ed]” (Statute, Article II (1) and (2)). - Challenges to “individual” decisions require exhaustion of all available channels of administrative review before filing (Statute, Article V (1)). - Judgments of the Tribunal are final and without appeal (Statute, Article XIII (2)). - Tribunal composition and terms: - President, two Associate Judges and two Alternate Judges, each appointed for two-year terms and eligible for reappointment (Statute, Article VII (1)(a) and (b), and (2)). - Judges must possess qualifications required for appointment to high judicial office or be jurisconsults of recognized competence (Statute, Article VII (1)(c)). - Composition during 2000–2002: - Judge Stephen M. Schwebel, President (United States) - Associate Judge Nisuke Ando (Japan) - Associate Judge Michel Gentot (France) - Alternate Judge Georges Abi-Saab (Egypt) - Alternate Judge Agustín Gordillo (Argentina) - During 2000–2002 the Tribunal rendered five Judgments and one Order. ### Developments in Substantive Law (2000–2002) - New substantive issues adjudicated included: - Interpretation of a provision of the Fund’s Staff Retirement Plan (SRP) permitting the IMF, pursuant to specified procedures, to give effect to orders for family support and division of marital property issued by domestic courts. - Potential conflict of laws between domestic court judgments and Fund internal law, resolved by reference to the Fund’s “public policy” (the internal law of the Fund) (Mr. “P” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2001-2 (November 20, 2001)). - Invocation of the principle of nondiscrimination as a constraint on management’s discretionary authority in two Judgments concerning allocation of differing employment benefits to different categories of Fund staff: - Mr. “R”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2002-1 (March 5, 2002) (overseas Office Directors v. Resident Representatives). - Ms. “G”, Applicant and Mr. “H”, Intervenor v. International Monetary Fund, Respondent, IMFAT Judgment No. 2002-3 (December 18, 2002) (Lawful Permanent Residents v. G-4 visa holders). - The Tribunal applied a “rational nexus” test to resolve nondiscrimination claims. ### The Law Applied by the Administrative Tribunal - Article III of the Tribunal’s Statute: “[i]n 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.” - The Tribunal confronted the relationship between the Fund’s internal law and domestic law of member states in Mr. “P” (No. 2). ### Case Study: Mr. “P” (No. 2) — SRP Escrow Decision and Conflict of Laws - Facts: - Mr. “P”, a retiree of the Fund, challenged an Administration Committee decision of the Staff Retirement Plan to place in escrow a portion of his monthly pension payment pursuant to an SRP provision authorizing the Fund, under prescribed procedures, to give effect to orders for spousal and child support and for division of marital property. - Ms. “Q”, Mr. “P”’s former spouse, sought effect for a Maryland Judgment of Absolute Divorce awarding her a continuing share of Mr. “P”’s IMF pension entitlement. - Mr. “P” obtained a divorce in Egypt by declaration to a religious notary without Ms. “Q”’s participation; the Egyptian divorce was later registered with civil authorities and did not provide for division of marital property. - The Maryland Judgment resulted from adversary proceedings in which Mr. “P” had actively participated before moving to Egypt and specifically treated division of the pension. - Administration Committee action: - The Committee concluded a bona fide dispute existed as to the efficacy, finality or meaning of the Maryland Judgment and placed the disputed portion of the pension in escrow pending resolution. - Procedural posture: - Mr. “P” challenged the escrow decision before the Tribunal, seeking restoration of the full pension. - Ms. “Q” filed an application for intervention; the IMFAT granted the application and she participated as a party. - Tribunal analysis and holdings: - The Tribunal concluded it had scope within its appellate authority to adjudicate the dispute and noted that, absent its appellate jurisdiction, the parties could be indefinitely without third party remedy. - The Tribunal found the Administration Committee’s decision “understandable” but “in error and must be rescinded.” - The Tribunal’s ability to provide recourse could overcome conjectural objections about whether the Administration Committee acted erroneously in withholding when no foreseeable resolution of the dispute existed. *International Monetary Fund Administrative Tribunal Reports, Vol. II — Appendix.* ### Section 7.2 (b) of the Staff Retirement Plan provides that decisions by the SRP Admin- ### Section 7.2 (b) of the Staff Retirement Plan — Jurisdiction and Related Jurisprudence ### Jurisdiction over SRP Administration Committee decisions - Section 7.2 (b) of the Staff Retirement Plan provides that decisions by the SRP Administration Committee to determine inter alia whether any person has a right to any benefit under the Plan, and the amount thereof, are subject to review by the Administrative Tribunal. - The Tribunal’s Statute places review of such decisions within its jurisdiction ratione materiæ. (Statute, Article II (1) (b).) ### Treatment of foreign municipal judgments and the Fund’s internal law - The Tribunal stated it has no competence to pass upon the validity of municipal law as interpreted and applied by the legal authorities of either Maryland or Egypt, and must take as its starting point that the Maryland Judgment of Absolute Divorce is valid under Maryland law and that the Egyptian divorce as recorded by a religious notary and registered with Egyptian civil authorities is valid under Egyptian law. - Applying the Fund’s internal law, as required by its Statute, the Tribunal looked to the “public policy” of its forum as embodied in the relevant provision of the Staff Retirement Plan. - The Fund’s internal policy: - Encourages enforcement of orders for family support and division of marital property and therefore favors legal systems in which such measures are recognized. - Favors legal decisions that are the result of adversary proceedings in which reasonable notice and the opportunity to be heard are essential elements. - Permits conditioning receipt of retirement benefits on compliance with valid orders for family support or division of marital property. - The Tribunal considered additional factors, including that the staff member had submitted himself to the jurisdiction of the Maryland court, later left that jurisdiction, and obtained a foreign divorce; and that the pension plan provision and Administration Committee Rules were expressly designed to apply to retired participants who have moved outside the jurisdiction of the court issuing the applicable order. - The Tribunal emphasized that it does not enforce the law of Maryland nor decline to enforce the law of Egypt; rather, its decision responds to the public policy of its forum, namely, the internal law of the Fund. ### Nondiscrimination as a constraint on managerial discretion - The Tribunal ruled expressly that the principle of nondiscrimination serves as a constraint on management’s discretionary authority (first ruled in the Judgments in Mr. “R” and Ms. “G”). - In challenges to policies that allocated differing employment benefits to different categories of Fund staff, the Tribunal adopted a substantive limit on discretion and required that distinctions be supported by evidence establishing a “rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” - Key holdings and reasoning: - The Tribunal recognized the need to balance deference to managerial discretion with ensuring discretionary authority is exercised consistently with nondiscrimination principles. - Discretionary decisions cannot be overturned unless 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 (citing Commentary on the Tribunal’s Statute). - The “rational nexus” test does not require a perfect fit between policy objectives and classification scheme; categories may rest upon generalizations. - Application to Mr. “R”: - The Tribunal found the distinction in benefits between overseas Office Directors and Resident Representatives was rationally related to the purposes of the benefits (e.g., incentive to recruitment), even though based on generalizations about living conditions. - The Fund’s study and considered rejection of parity supported that the policy decision was not arbitrary; the distinction was “rational, related to objective factors, and untainted by any animus against the Applicant.” - Managerial discretion includes choosing between valid alternatives; although granting an exception might have been reasonable, the Fund’s decision not to make an exception was within its managerial discretion. - Application to Ms. “G”: - The Executive Board’s amendment effective in 2002 extended expatriate benefits to U.S. LPRs on the condition they relinquish LPR status in favor of obtaining a G-4 visa; Ms. “G” sought an exception to retain LPR status while receiving benefits. - The Tribunal assessed whether there was a rational nexus between the expatriate benefits policy goals (compensation for costs associated with maintaining ties with home countries; facilitating repatriation; recruiting and retaining a diverse staff) and the method for allocating benefits. - The Tribunal concluded the visa criterion was reasonable, deliberate, and defensible; choices in managerial authority cannot be overridden when rationally related to the mission and objectives of the Fund. - The Tribunal observed it is reasonable to accord benefits to G-4 visa holders withheld from LPRs because advantages of LPR status run counter to a fixed intention to return to the home country, whereas G-4 holders’ options are more limited and directed towards eventual repatriation. - Having determined the policy was not discriminatory, the Tribunal denied Ms. “G”’s application and that of Mr. “H” as Intervenor. ### Admissibility of parties and claims; jurisdiction ratione personæ and temporis; intervention - The Tribunal addressed admissibility issues during 2000–2002, including the reach of its jurisdiction ratione personæ, intervention, the requirement that claimants be “adversely affect[ed]” by the contested administrative act, and the statutory time bar against challenges to administrative acts pre-dating the Tribunal’s competence. - Jurisdiction ratione personæ — Estate of Mr. “D” (IMFAT Judgment No. 2001-1, March 30, 2001): - The Tribunal held its jurisdiction ratione personæ extends to a successor in interest to a non-staff member enrollee in the Fund’s Medical Benefits Plan. - Although the Statute expressly includes successors in interest to staff members and non-staff member enrollees, the Statute is silent on successors in interest to non-staff enrollees; the Tribunal concluded Article II confers jurisdiction over this unusual category based on the Commentary and the structure of the Fund’s benefits program. - Intervention: - The Statute and Rules permit intervention by persons to whom the Tribunal is open under Section 1 of Article II, whose rights may be affected by the judgment (Statute, Article X (2); Rule XIV, para. 1). - In Mr. “P” (No. 2) and Ms. “G”, the Tribunal granted applications for intervention over objections. - In Mr. “P” (No. 2), the Tribunal relied on Estate of Mr. “D” to admit Ms. “Q” as an Intervenor where her right to be heard was identical to whether she could have filed an Application contesting the Administration Committee’s decision to escrow a portion of Mr. “P”’s pension payments under SRP Section 11.3. *Source: DEVELOPMENTS IN THE JURISPRUDENCE OF IMF ADMINISTRATIVE TRIBUNAL: 2000–2002, IMF Administrative Tribunal Reports, Vol. II.* ### 11.3 grants rights under the Plan to persons such as the Applicant for Intervention to ### imfat-2 - 11.3 grants rights under the Plan to persons such as the Applicant for Intervention to ### Intervention and beneficiary rights under the Staff Retirement Plan (SRP) - The SRP’s Administration Committee created an administrative review procedure open to “any person claiming any rights or benefits under the Plan.” - Ms. “Q” initiated that procedure by requesting the Administration Committee to give effect to the Maryland Judgment. - The Tribunal concluded that Ms. “Q” was “a beneficiary under a Fund benefit plan, for purposes of challenging the legality of the Administration Committee’s Decision on her Request to give effect to the [support] order.” (Application for intervention granted.) - Both Mr. “P” and the Fund had objected to Ms. “Q”’s intervention; the Fund suggested inviting her as Amicus Curiæ rather than admitting her as a party. - In Ms. “G”, the Tribunal applied its Rule on intervention in a challenge to a “regulatory” decision and admitted Mr. “H” as an Intervenor even though his position overlapped with the class that would benefit if Ms. “G” succeeded: - The Tribunal held that the prospective intervenor being affected by the outcome supported admission so he could attempt to persuade the Tribunal of his views. - The Tribunal emphasized the statutory language “may be affected by the judgment” provides a broad standard for admission of intervention. - The Tribunal rejected denying intervention as “merely duplicative” of the Applicant’s claims, observing that identity between applicant and intervenor claims is ordinarily the touchstone for admission. - The Tribunal rejected arguments that intervention should be denied because it would create additional burdens for the Applicant. ### The “adversely affecting” requirement of Article II (standing) - Article II (1) requires that an Applicant be “adversely affect[ed]” by an administrative act to challenge it; this prevents the Tribunal from resolving hypothetical questions or issuing advisory opinions. - The Tribunal interpreted the requirement as ensuring the applicant “has an actual stake in the controversy.” - The Fund contended Ms. “G” was not adversely affected because, as an LPR employed after 1985, she had been and continued to be ineligible for expatriate benefits and the 2002 amendment only expanded options by permitting conversion to G-4 visa status. - The Tribunal held Ms. “G” was “adversely affect[ed]” because she remained ineligible for expatriate benefits as a staff member employed after 1985 and continuing to hold LPR visa status. - The Tribunal cautioned that the inquiry into whether an Applicant has been “adversely affect[ed]” for admissibility is distinct from the merits inquiry as to whether the Applicant will prevail. ### The Time Bar of Article XX (ratione temporis jurisdiction) - Article XX (1) provides the Tribunal shall not be competent to pass judgment upon any application challenging an administrative act taken before October 15, 1992. - The Fund argued Ms. “G” challenged a policy (the “visa test” for expatriate benefits) originating in 1985 and therefore barred by Article XX. - The Tribunal examined Executive Board actions after the Statute entered into force and found the 1985 expatriate benefits policy had been reconsidered and reaffirmed in 1994 and materially refashioned as of 2002. - The Tribunal concluded those later decisions “represent the re-consideration of the contested policy and its adaptation at the highest levels of the Fund’s decision-making” and thus constitute an “administrative act” within the Tribunal’s jurisdiction ratione temporis. - The Tribunal distinguished this from cases (e.g., Ms. “S”) where no evidence existed that a contested rule had been reconsidered within the Tribunal’s period of jurisdiction. ### The IMFAT’s relationship to the Fund’s channels of administrative review (Article V, exhaustion) - Article V provides 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. - For “individual decisions,” administrative review is typically exhausted through the Fund’s Grievance Committee (after preliminary steps set out in GAO No. 31). - Challenges arising under the SRP are expressly excluded from the Grievance Committee’s jurisdiction; in 1999 the Fund enacted Rules of Procedure of the Administration Committee of the SRP setting exhaustion requirements for IMFAT filings. - The Tribunal held that dismissal by the Grievance Committee for lack of jurisdiction or untimeliness does not necessarily bar an Application to the Tribunal: - In Estate of Mr. “D”, the Tribunal held a Grievance Committee determination as to exhaustion is “relevant to but not necessarily dispositive of” whether channels have been exhausted for IMFAT admissibility. - The Tribunal asserted its authority to decide whether exhaustion occurred and to assess the performance of administrative review channels. - The Tribunal found “exceptional circumstances” could excuse failure to seek timely recourse to antecedent review procedures and exercised jurisdiction in Estate of Mr. “D”. - The Tribunal cautioned that “exceptional circumstances” should not be lightly found and that exhaustion and adherence to time limits are important. - In Ms. “Y” (No. 2), the Tribunal emphasized the value of timely administrative review: - A discrimination claim initially raised through an alternative dispute resolution mechanism was subject to only limited review by the Tribunal where mandatory time periods had expired. - The Tribunal held only the decision of the Fund’s Director of Administration affirming the discrimination review findings could be reviewed by the Tribunal. - The Tribunal affirmed that while the Fund may create alternative mechanisms to remedy past discrimination, the Administrative Tribunal remains controlled by its Statute. _Impartial findings and jurisprudential developments as reported in IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. II (Developments in the Jurisprudence of IMF Administrative Tribunal: 2000–2002)._ ### Conclusion ### Conclusion ### New substantive law issues addressed (2000–2002) - The Tribunal considered issues of substantive law with which it had not previously been confronted during the period 2000–2002. - Interpretation of a provision of the Fund’s Staff Retirement Plan permitting the IMF to give effect to orders for family support and division of marital property issued by domestic courts: - The Tribunal resolved a potential conflict of laws question by reference to what it termed the “public policy” of the forum, i.e., the internal law of the Fund. - The Tribunal held that the order of a Maryland court dividing a Fund retiree’s pension payments for the benefit of his former spouse be given effect pursuant to Fund rules. - Invocation of the principle of nondiscrimination as a constraint on management’s discretionary authority: - In two Judgments, the Tribunal examined alleged impermissible discrimination arising in the allocation of differing employment benefits to different categories of Fund staff. - The Tribunal applied a “rational nexus” test and upheld the Fund’s exercise of discretion. ### Admissibility, jurisdiction ratione personae, and standing - The IMFAT addressed and rejected several challenges to the admissibility of parties and claims before the Tribunal during 2000–2002. - Jurisdiction ratione personae: - The Tribunal held its jurisdiction ratione personae extends to a successor in interest to a non-staff member enrollee in the Fund’s Medical Benefits Plan. - Drawing upon that decision, in two subsequent Judgments the Tribunal addressed intervention by persons within the Tribunal’s jurisdiction ratione personae whose rights may be affected by a Judgment, and in each case rejected arguments to deny intervention. - Standing and time bar: - The Tribunal interpreted for the first time the statutory provision that an Applicant has standing to challenge only an administrative act “adversely affecting” him. - The Tribunal revisited the question of the statutory time bar on challenges to administrative acts predating the period of the Tribunal’s competence. - In each instance, the IMFAT, responding to its statutory mandate and role within the Fund’s system for resolution of staff disputes, rejected arguments that would have denied the admissibility of parties or claims before the Tribunal. ### Relationship to other elements of the Fund’s dispute resolution system - The Tribunal examined complexities in its relationship to other elements of the Fund’s dispute resolution system during 2000–2002. - Admissibility after Grievance Committee dismissal: - The Tribunal addressed admissibility of an Application following dismissal of the complaint as untimely by the Fund’s Grievance Committee. - The Tribunal held the Grievance Committee’s resolution of its own jurisdiction was not dispositive of whether the Applicant had satisfied the exhaustion of remedies requirement of the Tribunal’s Statute, and admitted the Application. - Alternative dispute resolution and administrative review: - The Tribunal reaffirmed the importance of timely review by available channels of formal administrative review. - The Tribunal concluded that the substance of a discrimination claim initially raised pursuant to an alternative dispute resolution procedure was subject only to limited review by the Administrative Tribunal. ### Judgment No. 2001-1 — Estate of Mr. “D” v. International Monetary Fund (Admissibility) - Procedural and factual summary (selected chronological entries and procedural rules referenced): - The Tribunal met on March 29 and 30, 2001, composed of Judge Stephen M. Schwebel (President), and Judges Nisuke Ando and Michel Gentot (Associate Judges). - The Estate of Mr. “D” (represented by Executrix Ms. “D”) challenged denial of reimbursement of medical evacuation expenses incurred by the decedent in May–June 1998. - January 1999: After internal appeals to United HealthCare (“UHC”) and outside consultant review, a Fund personnel officer informed Ms. “D” that the claimed evacuation benefit had been denied. - Almost one year later, Ms. “D” sought administrative review from the Fund’s Director of Human Resources; the Director denied the request because she had failed to seek review by the Division Chief within three months of the denial, as required under Fund administrative review procedures. - Ms. “D” filed a grievance with the Fund’s Grievance Committee; the Chairman decided the Committee lacked jurisdiction because of failure to pursue timely administrative review. - The Fund filed a Motion for Summary Dismissal contending non-exhaustion of administrative review channels as required by Article V, para. 1 of the Tribunal’s Statute. - Key filings and procedural dates: - October 31, 2000: The Estate filed an Application with the Administrative Tribunal. - November 3, 2000: Application transmitted to the Respondent. - December 11, 2000: Fund filed a Motion for Summary Dismissal pursuant to Rule XII. - December 27, 2000: Respondent filed a supplemented Motion for Summary Dismissal; transmitted to Applicant on January 2, 2001. - January 11, 2001: Applicant submitted an Amended Document Request; Fund’s Response received January 19, 2001. - February 12, 2001: Applicant filed an Objection to the Motion for Summary Dismissal. - February 14, 2001: Respondent requested leave to submit an Additional Statement; granted and transmitted February 15, 2001. - February 21, 2001: Applicant sought leave to file an Additional Statement; granted and transmitted February 23, 2001. - February 26, 2001: President, acting under Rule XVII, paras. 2 and 4, denied Applicant’s Amended Request for Documents in part and issued a Request for Information to the Fund concerning Grievance Committee practice and GAO No. 31. - March 9, 2001: Fund’s response to the Tribunal’s Request for Information received. - March 29–30, 2001: Tribunal session to decide the Motion for Summary Dismissal. - Procedural and substantive rulings of note: - A Motion for Summary Dismissal suspends the period for answering the Application until the Motion is acted on by the Tribunal, limiting the proceedings at that stage to the question of admissibility. - The President exercised Rule XXI, para. 2 authority to modify time limits and the application of Rules to permit supplementation and additional pleadings in exceptional circumstances. - Under Rule XII, para. 3, the Fund was given an opportunity to supply complete texts of documents referred to in the motion; by analogy to Rule VII, the Registrar allowed a fifteen-day period to supplement annexes where the motion did not fully comply. - The President, under Rule XVII and Rule XXI, evaluated document requests for relevance and privacy, rejected requests deemed “clearly irrelevant,” and used the Tribunal’s authority to request information “that it deems useful to its judgment.” *IMF Administrative Tribunal Reports, Vol. II — Conclusion and Judgment No. 2001-1* ### 14. The Tribunal decided that oral proceedings, which neither party had ### JUDGMENT NO. 2001-1 (ESTATE OF MR. "D") ### Tribunal procedure on oral proceedings and admissibility - The Tribunal decided that oral proceedings, which neither party had requested on the Motion for Summary Dismissal, would not be held, as they were not “necessary for the disposition of the case” which at this stage is confined to the question of the admissibility of the Application. - Article XII of the Statute requires that “The Tribunal shall decide in each case whether oral proceedings are warranted.” Rule XIII provides that “Oral proceedings shall be held if the Tribunal decides that they are necessary to the disposition of the case.” ### Request for Information (issues raised) - The Request for Information sought: - How many grievances have been filed since the Grievance Committee’s inception in 1981? - How many grievances have been dismissed by the Grievance Committee for failure to meet the requirements for exhaustion of administrative review under GAO No. 31? - How many grievances have been filed by: - a) non-staff members who are enrollees in a benefit plan maintained by the Fund as employer, or - b) non-staff members who are successors in interest to deceased enrollees in a benefit plan maintained by the Fund as employer? What has been the disposition of each of these cases? - In how many of the grievances over which the Grievance Committee has exercised jurisdiction, has the Fund consented to: - a) direct Grievance Committee review under GAO No. 31, Section 7.01.2, or - b) the extension of time limits for completion of the administrative review process under GAO No. 31, Section 6.07.1, or - c) any other extension or waiver of time limits for the exhaustion of administrative review under any applicable provision of GAO No. 31? ### Factual background — Mr. “D”’s status and medical condition - Mr. “D” was a retired staff member of the World Bank and was enrolled under a family policy in the Medical Benefits Plan maintained by the International Monetary Fund, where his wife had been a staff member. - Following his wife’s retirement from the IMF in 1996, and later her death in 1997, Mr. “D” remained an enrollee in the Fund’s MBP. - In May 1998 Mr. “D”, who had begun treatment for metastasized lung cancer, traveled to his home country with his doctor’s permission. While there he became ill with pneumonia and had to be placed on a ventilator. - Family members deemed hospital conditions “deplorable” and arranged medical evacuation to a Maryland hospital where he had previously been treated. Mr. “D” was evacuated on June 2. He died in September 1998. - The Application cites lack of sanitation, malfunctioning oxygen equipment, and lack of antibiotics which family members had to track down and have delivered from abroad. ### Family’s contacts with United HealthCare (UHC) and IMF prior to evacuation (May–June 1998) - Applicant’s account: - United HealthCare gave the family assurances that the evacuation would be covered by the MBP if “medically necessary,” and the Fund did not give them a definitive answer to the contrary. - On May 18 Mr. “D”’s son spoke by phone with a UHC representative who, he maintains, told him the evacuation would be covered if “medically necessary” and that a letter to that effect would be supplied by the attending physician. - On May 29 the son faxed a letter from the overseas attending physician asserting that “due to the extreme, life threatening nature of his condition,” it was a “medical necessity” immediately to evacuate Mr. “D” to the United States. - On May 31 the son faxed a credit card authorization for full payment to the medical transport company. On June 1 the same UHC representative reportedly told him the claim had been denied. - Respondent’s account: - The Fund contends the family understood before the evacuation that its cost would not be covered, and that the family could have cancelled the arrangements but was prepared to pay the full cost (approximately $50,000) themselves or with the help of a family friend. - The Fund asserts earlier communications (on or about May 15) through a World Bank official and the Bank’s Health Services Department indicated the MBP would not likely cover evacuation expenses and that transportation expenses were excluded under the MBP. ### UHC denial and appeal rights (June 2, 1998 letter) - UHC’s June 2, 1998 letter stated UHC determines at its own discretion if a service is medically necessary and concluded the proposed course of treatment was not medically necessary and therefore not covered. - UHC described air ambulance medical necessity criteria: 1. No other form of transportation is appropriate for the condition of the patient, and 2. Transportation is to the closest facility capable of managing the patient’s medical needs. - The letter advised the family of the right to appeal and that United HealthCare offers two (2) levels of appeal. It requested submission of specified medical information within sixty (60) days of receipt of the notice. ### Appeals with UHC (July–October 1998) - July 25, 1998: Mr. “D”’s children submitted a detailed appeal to UHC with supporting documentation and a letter from Mr. “D”’s Maryland oncologist addressing medical necessity. - August 22, 1998: UHC denied coverage on appeal, stating the MBP excludes transportation or travel except for local ambulance service; the letter provided notice of a right to a second level of appeal within 60 days. - October 7, 1998: Following Mr. “D”’s death in September, Ms. “D” pursued the second appeal, noting the inconsistency between the June 2 denial on medical necessity grounds and the August 22 denial on contractual exclusion grounds. - October 20, 1998: UHC again denied the claim, stating it was a coverage decision governed by contract language: reimbursement for the air ambulance services used is simply not available in the benefit document; ambulance services explicitly provided refer to local ambulance services, as contrasted with ambulance services to transport a patient from one country to another. ### Approaches to the Fund for review (November–December 1998) - November 1998: A friend and attorney of Ms. “D” telephoned Mr. “E” in the Fund’s Staff Benefits Division to inquire about recourse within the IMF. The friend’s affidavit asserts Mr. [“E”] offered only referral to an independent medical expert for review and did not mention the grievance committee process in GAO No. 31. - December 14, 1998: Ms. “D” wrote to Mr. [“E”] to avail herself of the option to have the matter referred to an independent outside medical expert for final determination, enclosing documentation and arguing the claim should be determined on the basis of “medical necessity.” ### Decision of January 26, 1999 (Intracorp external review) - January 26, 1999: Mr. [“E”] telephoned Ms. [“D”] and informed her the results of Intracorp’s external review were consistent with UHC’s denial of coverage. - Mr. [“E”] faxed a letter dated January 26, 1999 stating: - Medical evacuation is not a covered benefit under the MBP. - In very rare circumstances where medical care is not available at the participant’s location, as an exception the local ambulance benefit is extended to allow transportation to the nearest location where medical care is available. - The independent physician concluded the father’s condition did not justify a medical evacuation; a copy of the physician’s findings was attached. - The letter concluded: “I regret that this is not the outcome you had hoped for in this case.” It provided no information as to any grievance or appeal procedures within the Fund. - Applicant asserts a hard copy of the faxed letter was never received; the Fund has not disputed this assertion. - Footnote: The attached physician findings concluded transportation of Mr. “D” to another facility was not “absolutely necessary.” ### Applicant’s alleged conversation with the Ombudsperson (January 28, 1999) - January 28, 1999: Applicant alleges she telephoned the Fund’s Ombudsperson seeking information on appeal procedures. Applicant alleges the Ombudsperson assured her there were internal channels for appeal and that the matter could be handled upon her return despite Applicant telling the Ombudsperson she would be overseas for “three to five months.” Applicant asserts the Ombudsperson never mentioned a time frame within which the matter had to be pursued. - Applicant asserts that had the Ombudsperson alerted her to a deadline she would have pursued the review process from abroad or petitioned the Grievance Committee for an extension before the expiration of the deadline. ### Applicant’s later pursuit of review by the Director of Human Resources (January–February 2000) - Applicant’s timeline is not precisely evident from the record. Although she contends she told the Ombudsperson in January 1999 she would be gone for three to five months, she did not take further action to pursue review of the contested benefit until nearly a year later. - Late 1999: Applicant contacted the Fund’s new Ombudsperson, who she asserts was the first person to inform her of the administrative review procedures and to provide her with a copy of GAO No. 31. *Source: IMF Administrative Tribunal Reports, Judgment No. 2001-1 (Estate of Mr. "D")* ### 40. On January 14, 2000, Ms. “D” wrote to the Fund’s Director of Human ### 40. On January 14, 2000, Ms. “D” wrote to the Fund’s Director of Human Resources ### Administrative review request and substantive claim - On January 14, 2000, Ms. “D” formally requested administrative review by the Director of Human Resources under GAO No. 31: “Having exhausted other channels of appeal, I am now formally requesting administrative review by the Director of Human Resources under GAO No. 31.” - Substance of Applicant’s claim: - Argument that “there has been a great deal of confusion with the administrators of the health insurance as to what exactly is covered.” - Reliance on UHC’s repeated overseas representations that evacuation was covered if “medically necessary.” - Applicant requested waiver of time limits for administrative review on an exceptional basis, stating she was not advised of time frames or appeal protocol and appealing “on moral grounds” that the IMF “has a moral obligation to take responsibility for the errors of its agents.” ### Director of Human Resources response and internal review (February 1, 2000) - Director of Human Resources declined to review under GAO No. 31 because the period for initiation by Applicant had expired: - Cited GAO 31, Section 6.03: written request must be submitted “within three months after the staff member was informed of the intended application of the benefit.” - Noted Applicant “was informed of the denial of the benefit in your father’s case more than 11 months ago and no written request for review was received by the Staff Benefits Division within the three-month time limit or since that time.” - Director initiated an internal review of her staff’s actions and concluded that “it cannot be claimed that you believed that the cost of your father’s flight back to the United States would be covered under the MBP.” - Director concluded: “I wish that I could respond more favorably to your request, but the provisions of the MBP, as well as the time limitations in GAO 31, preclude any other action on my part.” ### Approach to the Grievance Committee (March–May 2000) - March 15, 2000: Ms. “D” filed a formal grievance with the Fund’s Grievance Committee challenging denial of MBP coverage for her father’s evacuation and raising timeliness, arguing she had not been informed of GAO No. 31 procedures and had received mistaken information from the Fund’s then Ombudsperson. - Assistant Director of Human Resources (April 26) argued grievance was time-barred under GAO No. 31, Section 6.03, and urged dismissal: “Ms. [‘D’]’s apparent lack of knowledge of the rules regarding the time limits for the submission of claims is not a valid basis for an exception to this mandatory requirement.” - May 10, 2000: Grievance Committee Chairman dismissed the grievance for lack of jurisdiction: - Stated procedural time limits are mandatory and must be met for the Committee to have jurisdiction. - Noted the Ombudsperson “had no authority to waive these mandatory time limits.” - Concluded: “There is simply no way to empower the Grievance Committee with authority that it does not have under the enabling provisions of GAO No. 31.” ### Applicant’s additional efforts and management response (July–August 2000) - July 15, 2000: Applicant appealed to the Managing Director and Deputy Managing Directors asking for remedy “in the interest of justice” and again seeking excuse for late invocation of administrative review, arguing GAO No. 31, Section 6.03 “applies only to staff members” and noting lack of access to internal IMF resources as a non-staff member. - Applicant rejected a late reimbursement notification of $392 for medical services as a “token” offer and reaffirmed that medical evacuation coverage remained unresolved. - August 2, 2000: Meeting with a Deputy Managing Director. - August 4, 2000: Deputy Managing Director denied request to overturn Grievance Committee ruling, emphasizing: - Applicant’s request for administrative review was submitted January 14, 2000, “or almost one year after the final administrative decision was taken.” - Statute of limitations “is not a legal technicality” and lack of knowledge of rules is not a valid reason for exception. - Management has “never overturned a ruling of the Grievance Committee since the Committee’s inception in 1980.” - August 4 letter advised possibility of appeal to the Administrative Tribunal within three months of the Grievance Committee decision and indicated the deadline for filing with the Tribunal would be August 10, 2000. ### Filing with the Administrative Tribunal and Registrar’s clarification (August–October 2000) - August 7, 2000: Applicant telephoned the Registrar of the Administrative Tribunal seeking clarification of the filing deadline. - Registrar, construing ambiguities in Article V in favor of the Applicant (after consulting with the Assistant Director of Human Resources who agreed Fund would not dispute such determination), concluded Applicant would have three months from the Deputy Managing Director’s August 4 letter in which to file. - Application filed with the Administrative Tribunal on October 31, 2000. - Noted ambiguity arising from Article V, para. 2 where the Grievance Committee Chairman notified Applicant directly rather than making a recommendation to the Managing Director, and commentary indicating three-month period under Article V would typically begin after administrative review is fully exhausted and a Managing Director decision on any recommendation. ### Summary of Applicant’s principal contentions (merits and procedural objections) - Contentions on the merits: - Mr. “D”’s medical evacuation was covered under the Medical Benefits Plan as medically necessary; supported by attending physicians’ evidence in the United States and overseas. - United HealthCare (UHC) authorized services as medically necessary and later took the position they were not covered; Fund admitted local ambulance benefit is in rare circumstances extended to transport to nearest available medical care; independent reviewer applied wrong standard of “absolute necessity.” - Family and UHC entered a special contract for reimbursement conditioned on proof of medical necessity and reasonableness; UHC waived other conditions; UHC and the IMF are estopped from imposing other conditions because family relied on their representations; UHC acted as an agent of the Fund. - Applicant seeks 100% of the submitted invoice for the air evacuation, plus interest, attorney’s fees, incidental damages and costs of the litigation. - Contentions opposing summary dismissal and on procedural issues: - Applicant exhausted administrative remedies by seeking Grievance Committee adjudication and appealing to senior IMF management. - “It is obvious and not contested that Applicant did not seek Administrative Review in a timely manner.” - Time limits of GAO No. 31 do not contemplate extension to the estate of a deceased beneficiary who was not a staff member. - Fund officers deliberately left Ms. “D” in ignorance of estate rights; she was not provided GAO No. 31 or access to IMF internal website; Mr. “E” treated matter as closed in his January 26, 1999 letter. - The Fund’s former Ombudsperson misled Applicant as to deadlines. - Facts indicate Applicant believed the minimum statute of limitations was one year. - Respondent abused discretion by not applying provisions for waiver and extension under GAO No. 31. - Failure to meet time limits for administrative review is not an automatic bar to the Administrative Tribunal’s jurisdiction. *IMF Administrative Tribunal Reports, Judgment No. 2001-1 (Estate of Mr. "D")* ### 9. Applicant promptly complied with rights of appeal of which the fam- ### JUDGMENT NO. 2001-1 (ESTATE OF MR. "D") ### Procedural compliance and preliminary assertions - Applicant promptly complied with rights of appeal of which the family was informed. - Applicant did not seek advantage through delay or willfully disregard time limits. - Respondent had ample opportunity to review the case and demonstrably did so. - Applicant mischaracterized Mr. “E” as Division Chief; Mr. “E” was a Human Resources Officer three levels below the Division Chief. Applicant “regrets the mischaracterization” but argues Mr. “E” had responsibility for the Medical Benefits Plan (MBP) and thus could receive a request to review on behalf of the “actual” Division Chief. ### Respondent’s principal contentions on the merits - Mr. “D”’s medical evacuation is not covered under the Fund’s Medical Benefits Plan because transportation or travel, except for local ambulance service, is excluded under the Plan. - Mr. “D”’s family understood it would be fully responsible for the expense of the medical evacuation before proceeding; the Medical Duty Officer and the Fund Human Resources Officer with responsibility for the MBP informed Mr. “D”’s son on June 1, 1998, that the evacuation would not be covered. - An external medical review found no basis for an exception to the rule excluding transportation expenses under the MBP; internal review by the Director of Human Resources confirmed the benefit was not payable and that the family understood this when it undertook the evacuation. ### Respondent’s contentions in favor of summary dismissal - Applicant failed to exhaust available channels of administrative review within the time limits prescribed by Fund rules; therefore the Application should be dismissed for lack of statutory exhaustion. - Applicant did not request review by the Chief of the Staff Benefits Division within three months of the denial of the benefit (GAO No. 31, Section 6.03); instead she submitted a request for review to the Director of Human Resources some nine months after the deadline for submission to the Division Chief had passed. - There is no basis to set aside the applicable time limits; failure to exhaust remedies was due solely to Applicant’s inaction and her lack of knowledge of the rules is not a valid basis for exception to mandatory time limits. - As Applicant is considered a “staff member” for purposes of submitting grievances to the Grievance Committee, she must be held to applicable time limits. - GAO No. 31, Section 6.07 does not permit tolling of any time limits in Applicant’s case. - Failure to exhaust administrative remedies was not due to any attempt by the Fund to mislead Applicant. - Alleged statements by the Fund’s former Ombudsperson should be disregarded because the Ombudsperson may not be called as a witness or required to provide information in Tribunal proceedings; Applicant told the Ombudsperson in January 1999 she would be abroad for three to five months but did not pursue her appeal again until almost a year later. - GAO No. 31 is not applicable to the successor in interest to a non-staff member enrollee in a Fund benefit plan; the Grievance Committee properly dismissed Applicant’s grievance on that basis. - If the Tribunal concludes the Grievance Committee should have considered applicability of jurisdictional time limits, parties should return to the Grievance Committee for examination of relevant facts, including merits if warranted. ### Tribunal’s jurisdiction ratione personæ under Article II - Article II, para. 1.b. and para. 2.c.(iii) set out competence over enrollees/beneficiaries under benefit plans and successors in interest to staff members. - The Commentary to the Statute explicitly states non-staff enrollees in the MBP may bring Applications; examples in the Commentary are not exhaustive and “for example” language implies other similar individuals could be included. - The Tribunal considered whether a successor in interest to a non-staff enrollee (the Estate of Mr. “D”) falls within its jurisdiction. - The Tribunal concluded it has jurisdiction ratione personæ over Applicant’s claim under Article II for two reasons: - The Commentary’s examples are not exhaustive, and the “for example” language indicates other similar individuals could be included. - Given the intent of the Statute and the structure of the Fund’s benefit program, it would be inconsistent to exclude a successor in interest to a non-staff enrollee from the reach of the provisions. ### Exhaustion of remedies requirement under Article V and Article VI time limits - Article V requires exhaustion of all available channels of administrative review before filing with the Tribunal; Article V, Section 2 distinguishes procedures where a grievance procedure for staff is available. - Article VI provides a three-month period after exhaustion of administrative remedies for filing an application with the Tribunal and permits the Tribunal to waive time limits “in exceptional circumstances” if it considers the delay justified. - The exhaustion requirement aims to provide opportunities for administrative resolution and to build a detailed record for adjudication; administrative remedies produce factual and legal records of great assistance to the Tribunal. - Tribunal jurisprudence and comparative decisions (e.g., WBAT Decisions No. 132 and No. 89) emphasize the importance of internal review to allow management to redress alleged violations and to develop a full evidentiary record. *Source: Judgment No. 2001-1 (Estate of Mr. "D"), IMF Administrative Tribunal Reports, Vol. II.* ### 69. As contemplated by Article V, para. 2 of the Statute, GAO No. 31, Rev. 3 ### 69. As contemplated by Article V, para. 2 of the Statute, GAO No. 31, Rev. 3 ### GAO No. 31: purpose and scope - GAO No. 31, Rev. 3 (1995) provides a comprehensive scheme for the administrative review of employment-related disputes within the Fund, leading up to Grievance Committee review and culminating in a recommendation from the Grievance Committee to the Fund’s Managing Director. - One stated purpose of GAO No. 31 is to “. . . make recommendations to the Managing Director in order to facilitate the fair and expeditious resolution of disputes. . . .” (GAO No. 31, Section 1.) - GAO No. 31 was adopted initially in 1980 to establish the Fund’s Grievance Committee and was amended in 1995, in part to bring it into conformity with the newly enacted Statute of the Administrative Tribunal. ### Persons entitled to Grievance Committee review (GAO No. 31, Section 7.01.1) - Categories of persons with access: - (i) any person currently or formerly employed by the Fund whose letter of appointment, whether regular or fixed-term, states or stated that he or she shall be a member of the staff; - (ii) any successor in interest to a deceased member of the staff, to the extent that he or she is entitled to assert a right of such staff member against the Fund; - (iii) any enrollee in a benefit plan maintained by the Fund as employer, with respect to decisions arising under any such plan. - The two latter categories (ii) and (iii) were inserted with the 1995 revision of GAO No. 31. ### Jurisdictional precondition: exhaustion of administrative review - The Grievance Committee’s jurisdiction is predicated upon a potential grievant’s exhaustion of underlying administrative review procedures, unless the Managing Director or the Managing Director’s designee consents to direct submission to the Committee (GAO No. 31, Section 4.02). - The Managing Director or the Director of Administration (now Human Resources) may, with the prior consent of the grievant, refer to the Committee any case brought directly to their attention, and the Committee shall have jurisdiction to hear the case (GAO No. 31, Section 7.01.2). ### Administrative review procedures and time limits for staff benefits (GAO No. 31, Sections 6.03–6.06, 7.03) - Initial administrative step for benefits: - A staff member shall first submit a request for review in writing to the division chief in the Administration Department responsible for administering the benefit, clearly indicating pursuit of remedies under GAO No. 31. - The request must be submitted within three months after the staff member was informed of the intended application of the benefit. - The division chief shall have 15 days to respond in writing. - Appeal to Director of Administration: - If dissatisfied with the response or if no response is received within 15 days, the staff member may request in writing a review by the Director of Administration. - The written request must be submitted within 30 days after the response from the division chief or Department Head, as applicable, has been received or the deadline for a response has passed, whichever is earlier. - Exhaustion defined: - Channels of administrative review are considered exhausted, for purposes of filing a grievance with the Committee, when the staff member has received a response to his or her written request or no response has been received within 15 days of its submission to the Director of Administration. - Decisions taken directly by senior officials: - For decisions taken directly by the Director of Administration or by the Managing Director (or their designees), the staff member may file a grievance with the Committee within six months after the challenged decision was made or communicated to the staff member, whichever is later. - Time limit to submit to Grievance Committee: - Other than with respect to decisions taken directly by the Director of Administration or the Managing Director, a grievant shall have 60 days after the administrative remedies have been exhausted to submit a grievance to the Committee. ### Time-limit extensions and waivers (GAO No. 31, Sections 6.07 and 6.07.1) - Automatic day-for-day extension: - The time limits prescribed in Sections 6.02, 6.03, 6.04 and 6.06 shall be extended, day for day, for each day that the grievant is working on Fund business outside Washington D.C. or is in recognized leave status, except for administrative leave and separation leave. - Discretionary extension by consent: - Any of the time limits prescribed (except those for initiation of administrative review or filing under Section 6.06) may be extended: - (i) for the staff member, with the consent of the official to whom the request for review is addressed; and - (ii) for the official responsible for responding to the request for review, with the consent of the staff member. - Fund’s historical practice: - The Fund stated it was unable to consent to any extension of time limits under GAO No. 31 from 1980 until the 1995 Revision, under which the applicable time limit for the initial submission of a benefit-related grievance to the Chief of the Staff Benefits Division was not extendable or waivable. - The Fund asserted a longstanding policy under GAO No. 31 against extending the initial submission of the benefit complaint to the Chief of the Staff Benefits Division. ### Empirical data on grievances under GAO No. 31 (1980 through end of 2000) - Approximately sixty-two grievances filed from 1980 through the end of 2000. - Of these, only three have been dismissed for failure to meet the requirements for exhaustion of administrative review under GAO No. 31. - Sixteen grievances have related to benefit questions of any kind. - Five of the benefit-related grievances have related to the Medical Benefits Plan. - The Fund asserts no record of any non-staff member grievances related to benefits and no successor in interest to a deceased staff member has filed a grievance since the 1995 revision permitted such filings. ### Application to the Estate of Mr. “D” (Applicant) - Compliance with procedures: - It is not contested that Applicant complied with the GAO No. 31 procedures and time limits except for the initial requirement of Section 6.03 to request administrative review by the Chief of the Staff Benefits Division within three months of the denial of the benefit. - Fund’s positions over time: - In the Motion for Summary Dismissal and in pre-litigation correspondence, the Fund contended Applicant, as successor in interest, is treated as a “staff member” for purposes of submitting grievances and thus was required to satisfy GAO No. 31 time limits. - In correspondence and rulings (including letters of February 1, 2000; April 26, 2000 memorandum; May 10, 2000 dismissal by the Grievance Committee Chairman; and August 4, 2000 Deputy Managing Director letter), the Fund asserted that further review was precluded because Applicant failed to comply with GAO No. 31 time limits. - In a March 9, 2001 submission to the Tribunal, the Fund for the first time contended GAO No. 31 was not applicable to Applicant’s claim, arguing a strict reading of Section 7.01.1 excludes successors in interest to non-staff enrollees in Fund benefit plans. - In a later pleading, the Fund indicated it would not assert the “defense” that GAO No. 31 was not applicable in the case. - Tribunal’s conclusion on applicability: - The Tribunal interprets the language of Section 7.01.1 to allow claims by a successor in interest to a non-staff member enrollee in a Fund benefit plan. - The Tribunal reasons that allowing the contrary would permit Applicant to access the Tribunal without proceeding through the administrative review required of staff members, their successors in interest, and enrollees in Fund benefit plans. - Accordingly, the Tribunal concludes Applicant falls within the reach of GAO No. 31 (subject to further consideration whether Applicant’s unusual status should excuse untimely initiation of administrative review). ### Effect of Grievance Committee Chairman’s dismissal and the Tribunal’s authority - Grievance Committee jurisdiction determination: - GAO No. 31 provides that the Grievance Committee “. . . for the purpose of proceeding with a grievance, shall decide whether it has jurisdiction over the matter.” (GAO No. 31, Section 4.04.) - Tribunal’s role vis-à-vis the Grievance Committee: - The Tribunal decides for itself whether channels of administrative review have been exhausted and may consider the Grievance Committee’s determination but is not bound by it. - The Tribunal does not serve as an appellate court reviewing the Grievance Committee’s recommendations, because those recommendations do not constitute “administrative acts” in the sense of Article II, Sections 1.a. and 2.a.; the Committee is not qualified to take “decisions.” - The Tribunal makes independent findings of fact and law and is not bound by the reasoning or recommendation of the Grievance Committee. *Source: GAO No. 31, Rev. 3 (1995); IMF Administrative Tribunal judgments and submissions as described in the cited material.* ### 87. The question considered in the Explanatory Memorandum arose as ### 87. The question considered in the Explanatory Memorandum arose as ### Background: Ms. “Y” and the Fund’s request for interpretation - The Tribunal’s Judgment in Ms. “Y”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1998-1 (December 18, 1998) addressed whether the applicant was required by Article V of the Tribunal’s Statute to have brought her complaint to the Grievance Committee after availing herself of an ad hoc discrimination review process instituted by the Fund for a limited period. - The Judgment referenced the “singular circumstances” of the case and held: “. . . 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.” (Ms. “Y”, para. 43). - The Fund requested the Tribunal to interpret “jurisdiction” in that holding as limited to “jurisdiction ratione materiæ,” seeking to preclude Tribunal review if the Grievance Committee dismissed the grievance as time-barred. ### Tribunal’s procedural response and explanatory memorandum - The Tribunal declined to admit the Fund’s request for interpretation because the term “jurisdiction” in the operative provisions was neither “obscure nor incomplete” as required under Article XVII of the Statute and Rule XX of the Rules of Procedure, and because adoption of the requested interpretation would amend the judgment. (Order No.1999-1, Interpretation of Judgment No. 1998-1 (Ms. “Y”, Applicant v. International Monetary Fund, Respondent) (February 26, 1999)). - The Order did not address the substantive issue. However, the Tribunal’s explanatory memorandum accompanying Order No. 1999-1 posed and answered the question: - “If the Applicant’s grievance is dismissed by the Grievance Committee as time-barred, should that dismissal necessarily determine that Ms. ‘Y’’s Application with the Tribunal is not admissible?” (IMFAT’s explanatory memorandum accompanying Order No. 1999-1, p. 7.) - The Tribunal answered this question in the negative and clarified the relationship between the Grievance Committee’s jurisdictional determinations and the Tribunal’s independent assessment under Article V. ### Key holdings on admissibility, jurisdiction, and evidentiary weight - The Tribunal held that: - “while the Grievance Committee judges its own jurisdiction for purposes of hearing a grievance (GAO No. 31, Section 4.04), the Administrative Tribunal necessarily decides for itself whether channels of administrative review have been exhausted, and in so doing it may consider the Grievance Committee’s determination.” - Should the Grievance Committee dismiss a complaint as time-barred and the Applicant then pursue the Tribunal, the Tribunal “would have the benefit of the Grievance Committee’s views on the matter of that Committee’s jurisdiction.” - The Tribunal may “take account of the treatment of an applicant before, during and after recourse to the Grievance Committee. The Tribunal is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” (citing Mr. M. D’Aoust, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1996-1 (April 2, 1996)). - The explanatory memorandum and IMFAT jurisprudence indicate the Grievance Committee Chairman’s denial of jurisdiction is relevant but not dispositive for the Tribunal’s independent determination whether Article V’s exhaustion requirement is met. ### Comparative jurisprudence from other international administrative tribunals - Asian Development Bank Administrative Tribunal (AsDBAT), Roman A. Alcartado v. ADB, Decision No. 41 (1998): - The Appeals Committee concluded the appeal was not time-barred because the applicant lacked adequate notice, but the AsDBAT held that the Appeals Committee’s decision is not binding on the Tribunal and re-examined timeliness; it concluded the six-month period had already begun and held the application inadmissible for failure to exhaust internal remedies. (Alcartado, paras. 12, 18, 21). - Quotation: “. . . firmly reject[ed] the contention of the Applicant that the decision of the Appeals Committee is in any way binding upon the Tribunal. The Appeals Committee is not meant to be a formal adjudicatory body but rather a recommendatory body . . . , albeit a most important one, that assists the Bank in the adjustment of grievances.” (Para. 18.) - International Labour Organisation Administrative Tribunal (ILOAT), In re Schulz, Judgment No. 575 (1983): - The appeals body assessed its competence ratione temporis as finding the claim not time-barred, but the Tribunal re-examined and found the applicant had not exhausted internal remedies; the application was inadmissible. - World Bank Administrative Tribunal (WBAT): - The rules provide that the Appeals Committee’s decision on competence is subject to review by the Administrative Tribunal (SR 9.03, para. 4.01). - WBAT has recognized the Appeals Committee as “part and parcel of the administrative review process.” (Helen Lewin v. IBRD, WBAT Decision No. 152 (1996), para. 43.) ### Importance of timely pursuit of administrative review - Tribunals emphasize both exhaustion of remedies and prompt pursuit of those remedies because timeliness: - “provides an early opportunity to the institution to rectify possible errors—when memories are fresh, documents are likely to be in hand, and disputed decisions are more amenable to adjustment.” (Alcartado, AsDBAT Decision No. 41, para. 12.) - Example holdings on timeliness and exhaustion: - ILOAT, Schultz: failure to submit an internal appeal within the three-month limit (Article 108 (2) of the Service Regulations) rendered the complaint irreceivable. (Schultz, p. 4.) - WBAT, Surinder N. Setia v. IBRD, Decision No. 134 (1993): reaffirmed that untimely internal complaints or appeals resulting in rejection must be regarded as non-compliance with exhaustion requirements (citing decisions Dhillon, Steinke, de Jong). (Setia, para. 23.) ### Exceptional circumstances: authority and limits - Some tribunals’ statutes expressly permit consideration of “exceptional circumstances” to admit otherwise inadmissible applications: - WBAT Statute, Art. II, para. 2: “No such application shall be admissible, except under exceptional circumstances as decided by the Tribunal, unless: (i) the applicant has exhausted all other remedies available within the Bank Group, except if the applicant and the respondent institution have agreed to submit the application directly to the Tribunal; and (ii) the application is filed within ninety days after the latest of the following: (a) the occurrence of the event giving rise to the application; (b) receipt of notice, after the applicant has exhausted all other remedies available within the Bank Group, that the relief asked for or recommended will not be granted; or (c) receipt of notice that the relief asked for or recommended will be granted, if such relief shall not have been granted within thirty days after receipt of such notice.” (WBAT Statute, Art. II, para. 2.) - The AsDBAT Statute’s Article II, para. 3 mirrors the WBAT provision. - AfDBAT Statute includes an express waiver provision for time limits in exceptional circumstances (AfDBAT Statute, Article III, para. 4). - ILOAT Statute lacks an express statutory basis to consider exceptional circumstances with respect to exhaustion (Article VII, para. 1) or filing time limits (Article VII, paras. 2 and 3), yet ILOAT has examined exceptional circumstances where organizational rules empowered waiver (In re Al Joundi, Judgment No. 259 (1975)). - IMFAT Statute: - Article VI, para. 3 expressly authorizes the Tribunal to waive filing time limits “In exceptional circumstances” where the Tribunal “considers the delay justified.” - The Commentary provides examples: “extensive mission travel, prolonged illness, or other exigent personal circumstances” and explains waiver may be requested before or after the deadline but requires a finding that the delay was justified. (Report of the Executive Board, p. 26.) - Tribunal’s conclusion on scope of exceptional circumstances: - The Tribunal concludes it has authority to consider exceptional circumstances when assessing whether an applicant has exhausted channels of administrative review under Article V, because: - Fund recourse procedures are complementary and intended to afford remedies, not to debar them; barring Tribunal review where anterior stages were defective would unjustly leave applicants without recourse. - There is support in other tribunals’ regimes for authority to find exceptional circumstances, including ILOAT practice. - Under Article V, paragraph 1, the Tribunal has the requisite basis to assess the performance of administrative channels. ### Standards and caution in applying “exceptional circumstances” - The Tribunal emphasizes that: - Exceptional circumstances “should not easily be found,” and exhaustion and adherence to time limits “should not be lightly dispensed with.” - Applicants aware of internal review requirements may not ignore them simply because pursuit would be considered “futile and illusory.” (Mesch and Siy (No. 3) v. Asian Development Bank, AsDBAT Decision No. 18 (1996), paras. 34–35.) - Time limits are not mere guidelines to be disregarded. (Mariam Yousufzi v. IBRD, WBAT Decision No. 151 (1996), para. 25.) - An applicant’s “own casual treatment of the relevant legal requirements” does not excuse delay. (Hans Agerschou v. IBRD, WBAT Decision No. 114 (1992), para. 45.) - The Tribunal rejects the contention that enforcement of time bars is contingent on showing prejudice to the respondent; time limits serve broader public purposes in organizing judicial proceedings and preventing unnecessary delays. (Yousufzi, paras. 25–26.) ### Tribunal’s holding and practical implications - The Tribunal holds: - It may consider exceptional circumstances in assessing whether an Applicant has exhausted administrative review as required for admissibility under Article V. - Nevertheless, exceptional circumstances are narrowly construed and will be found only when justified; applicants cannot rely on futility, casualness, or respondent non-prejudice to excuse untimely pursuit of internal remedies. - Practical implication: - When a Grievance Committee dismisses a complaint as time-barred, the Tribunal will independently assess admissibility and may re-examine timeliness and exceptional circumstances rather than treating the Committee’s dismissal as determinative. *IMF Administrative Tribunal Reports, Vol. II; Judgment No. 2001-1 (Estate of Mr. "D").* ### 106. The WBAT has cited the “extent of the delay and the nature of the ### imfat-2 - 106. The WBAT has cited the “extent of the delay and the nature of the ### Exceptional circumstances and standards for excuse of delay - The WBAT evaluates pleas of “exceptional circumstances” by reference to the “extent of the delay and the nature of the excuse.” (Ghulam Mustafa v. International Bank for Reconstruction and Development, WBAT Decision No. 195 (1998), para. 7; “A” v. International Bank for Reconstruction and Development, WBAT Decision No. 182 (1997)). - Internal remedies serve multiple purposes: enable each party to better appreciate the position of the other; provide the administration the opportunity to ascertain causes of an alleged grievance and to arrive at a settlement; and allow internal appeal bodies, more familiar with organizational factors, to elicit material evidence. “There must be cogent reasons for dispensing with internal remedies.” (Ferdinand P. Mesch and Robert Y. Siy (No. 3) v. Asian Development Bank, AsDBAT Decision No. 18 (1996), para. 31.) ### Admissibility under Article V — factors and tribunal approach - Applicant’s excuses for late initiation of administrative review must be evaluated in light of the extent and nature of the delay and the purposes of exhaustion of administrative remedies. (paras. 108–109) - Applicant alleges the Fund abused its discretion by not invoking GAO No. 31 extension and waiver provisions; the Fund reported the waiver provision of Section 7.01.2 has never been used, and § 6.07.1 would appear not to apply to the period for initiation of review procedures. (para. 109) - Authority to consent to waiver or extension under GAO No. 31 is discretionary; such exercise is reviewable by the Tribunal only upon allegations that the Fund’s action was arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. Applicant alleged abuse of discretion but did not make specific arguments beyond labeling her case “special and unusual.” (para. 110) ### Ombudsperson interactions and confidentiality - Applicant alleges that, on January 28, 1999, the Ombudsperson misled her as to the time frame for initiating administrative review, saying she could wait until return from being out of the country for three to five months. (para. 112) - The Ombudsperson’s Terms of Reference state the Ombudsperson “may not be called as a witness or otherwise be required to provide information in such proceedings,” and shall refrain from assisting grievants in the grievance process after providing procedural advice; confidentiality provisions limit disclosure except with the individual’s consent or where physical safety is threatened. (para. 113; quoted Terms of Reference para. 10, 11, 12, and para. 5) - Applicant has not produced a corroborating statement from the former Ombudsperson; the Tribunal must therefore decide the allegation on credibility grounds. Applicant delayed pursuit of the matter for an additional six months beyond the Ombudsperson’s alleged allowance of up to five months; this additional delay reduces the weight accorded to the exchange. (paras. 114–115) ### Notice of review procedures and relevance to excuse - Applicant’s principal argument for “exceptional circumstances” is that she was not provided timely and sufficient notice of the Fund’s administrative review procedures; specifically, Mr. “E”’s January 26, 1999 letter allegedly treated the matter as closed and did not inform her of additional Fund review procedures or provide GAO No. 31. (paras. 116–117) - Mr. “E”’s letter ended: “I regret that this is not the outcome you had hoped for in this case.” Mr. “E.” expected further contact from Applicant but did not include procedural instructions in the letter; an affidavit from Applicant’s friend states Mr. “E” offered only submission to an independent medical expert and “At no time did Mr. [“E”] mention the grievance committee process set out in GAO No. 31.” (paras. 117–118) - Respondent notes Applicant was not a Fund staff member, lacked access to staff information channels (including an internal website statement on Disputed Claims and Claims Appeal Procedures outlining GAO No. 31 procedures), and contends Applicant did not make reasonable efforts to inform herself; Applicant contends lack of access and notice are significant. (paras. 119–122) ### Precedents and comparative statutory treatments - Precedent: lack of individual notification generally does not excuse failure to comply with review procedures (Deborah Guya v. International Bank for Reconstruction and Development, WBAT Decision No. 174 (1997)). The WBAT held there is no rule requiring the Bank to advise staff at every stage of their right to request administrative or judicial review or recite time limits; failure to advise cannot be regarded as an “exceptional circumstance” under Article II, paragraph 2(ii) of the WBAT Statute. (para. 120) - Tribunals may nonetheless examine notice in assessing exceptional circumstances (Setia, WBAT Decision No. 134 (1993) (para. 25)). For example, a four-year delay was inexcusable where information was “widely publicized among the staff.” (para. 121) - Some tribunals provide automatic filing extensions for heirs of deceased staff members: UNAT Statute Article 7, para. 4 extends a 90-day limit to one year for heirs or trustees of incapacitated staff; IDBAT Statute Article II, para. 3 provides a similar extension. The IMFAT Commentary notes comparable periods in other tribunals generally are 60 or 90 days, with death exceptions; WBAT Statute (90 days); UNAT Statute (90 days); IDBAT Statute (60 days). (para. 123; footnote 30) ### Facts bearing on Applicant’s knowledge and conduct - Applicant was never a Fund staff member; she was the daughter and executrix of a deceased non-staff enrollee in the Fund’s Medical Benefits Plan, and thus cannot be assumed to have had access to staff-distributed dispute-resolution information or internal websites. (para. 122) - After timely appeals with UHC, Applicant’s representative contacted a Human Resources Officer responsible for the MBP; Mr. “E” offered, on an extraordinary basis, to send the claim for an external review. Applicant’s December 14, 1998 letter reflects she understood that external review as a “final determination.” There is no evidence the Fund sought to change her understanding. (para. 124) - At each stage where Applicant was informed of requisite procedures, she complied with deadlines; she attempted to invoke administrative review procedures and pursued appeals with UHC and other Fund channels beginning in January 2000. Applicant’s conduct does not represent “casual treatment of the relevant legal requirements.” (para. 125) - The Fund’s low grievance rate—“less than one grievance per 100,000 medical claims”—was reported in the Fund’s response to the Tribunal’s Request for Information and suggests the definitive nature of coverage and claims procedures under the Medical Benefits Plan. (footnote in para. 124) ### Tribunal’s evaluation of flexibility, ambivalence, and exhaustion requirement - The Fund’s vacillation about whether GAO No. 31 review procedures applied to Applicant may imply flexibility in applying review requirements. The WBAT’s decision in Charlotte Robinson v. International Bank for Reconstruction and Development, WBAT Decision No. 78 (1989) supports that organizational ambivalence concerning applicable procedures can render an applicant’s uncertainty understandable and justify flexible application of exhaustion requirements. (paras. 126–127) - The Tribunal notes the Fund reviewed the claim on several occasions, creating opportunities for dispute resolution and building an evidentiary record—factors relevant to assessing whether exceptional circumstances warrant dispensing with internal remedies. (paras. 125, 124) *Source: IMF Administrative Tribunal Reports, Judgment No. 2001-1 (Estate of Mr. "D"), paras. 106–127.* ### 36. Although, as the Tribunal will note shortly, its own jurisdiction is not ### JUDGMENT NO. 2001-2 Mr. “P” (No. 2), Applicant v. International Monetary Fund, Respondent (November 20, 2001) ### Application of Staff Rule 9.01 and Administrative Review - The Tribunal notes its jurisdiction can encompass omissions or failures to act as well as affirmative administrative decisions. - Staff Rule 9.01’s reference to review of an “administrative decision” can give rise to uncertainty for staff members. - The Tribunal concludes Staff Rule 9.01 and its provisions for administrative review should not be construed in an overly technical manner. - The administrative review procedures are designed to: - rectify misunderstandings; - resolve a wide range of claims by staff members in an expeditious but essentially informal manner. - Because many staff lack legal expertise and may act without counsel at an early dispute stage, the Tribunal concludes the procedures should be applied flexibly “in accordance with their terms and their spirit.” - The Appeals Committee, despite jurisdictional challenges, chose to rule on the merits in a comparable case; the Tribunal likewise concludes Staff Rule 9.01 should not bar the application in the circumstances of that case. ### Obligations to Inform and Recourse Procedures - The Tribunal concludes it was incumbent on the Fund to inform Ms. “D” of the specifics of further recourse open to her when Mr. “E” verbally informed and then faxed Ms. “D” of the denial of coverage following receipt of an external medical examiner’s opinion. - The Fund should have met that obligation by the time of Mr. “E”’s communication; his expectation of a later occasion to inform Ms. “D” is insufficient to excuse the Fund’s reticence. - The Fund could and should routinely have informed Ms. “D” of her options, for example by attaching to its denial of coverage the text of GAO No. 31 and information on recourse to the Administrative Tribunal. - The Fund had no reason to presume Ms. “D” knew recourse procedures to which it made no allusion; instead, the Fund gave the impression that, with the report of the external medical examiner, she had reached the end of the road. ### The Question of Returning the Case to the Grievance Committee - Respondent argued the Tribunal could remand the matter to the Grievance Committee for examination of relevant facts, including jurisdictional time limits. - Applicant argued returning the matter to the Grievance Committee would unduly prolong the case and sought resolution on the merits by the Tribunal. - The Tribunal observes: - The Fund’s current suggestion to remand departs from the view it urged in D’Aoust, where the Tribunal rejected treating it as an appellate body over the Grievance Committee. - GAO No. 31, Section 4.04 vests in the Grievance Committee the authority to decide upon its own jurisdiction. - In Ms. “Y”, the Tribunal did not direct remand; it stated that if the Grievance Committee, when seized, decided it lacked jurisdiction, the Administrative Tribunal would be open to reconsidering admissibility. - In the present case, Ms. “D” already sought Grievance Committee review and the Grievance Committee Chairman dismissed her grievance for failure to exhaust the prerequisite review procedure on a timely basis. - The Tribunal finds Respondent has not cited authority empowering the Tribunal to remand the case to the Grievance Committee and declines to direct the Applicant to file a request for review with the Division Chief of the Staff Benefits Division. - The Tribunal rejects Respondent’s concern that lack of a Grievance Committee decision on the merits will leave an inadequate evidentiary record because: - There is an extensive documentary record, including affidavits from several key individuals. - Parties will have opportunities to supply further argumentation and documentation on the merits. - If necessary, the Tribunal may examine witnesses and request information under Article X of the Statute and Rule XVII of the Rules of Procedure. - Decision on Motion for Summary Dismissal: - The Administrative Tribunal denies the Fund’s Motion for Summary Dismissal. - Exchange of pleadings pursuant to Rules VIII–X of the Tribunal’s Rules of Procedure will resume. - The filing of the Motion suspended the time for answering the Application until the Motion was acted on by the Tribunal (Rule XII, para. 2). - In view of denial of the Motion, the Fund’s Answer on the merits, Applicant’s Reply and the Fund’s Rejoinder will follow according to the schedule prescribed by the Rules. - Formal judgment language: - “FOR THESE REASONS The Fund’s Motion for Summary Dismissal is denied.” - Signatures: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; /s/ Stephen M. Schwebel, President; /s/ Celia Goldman, Registrar. - Washington, D.C., March 30, 2001. ### Proceedings in Mr. “P” Case — Introduction and Procedure - Case context: - Mr. “P”, a retiree of the Fund, contests the Administration Committee of the Staff Retirement Plan’s decision to withhold a portion of his pension payments pursuant to Section 11.3 of the SRP and corresponding Rules of the Administration Committee. - Ms. “Q”, Applicant’s former spouse, requested the Committee under its Rules to give effect to a Maryland divorce judgment awarding her 28% of Applicant’s pension. - The Administration Committee determined there was a bona fide dispute as to the efficacy, finality or meaning of the Maryland Judgment and placed the disputed portion of pension payments in escrow. - Ms. “Q” was admitted as an Intervenor seeking enforcement of the Maryland Judgment under the SRP. - Respondent asks the Tribunal to sustain the Administration Committee’s escrow decision. - Procedural timeline and filings: - Mr. “P” filed an Application with the Administrative Tribunal on February 28, 2001. - The Office of the Registrar advised the Application did not fulfill requirements of Rule VII, paras. 1, 2(c) and 3; Applicant was given additional time and brought the Application into compliance within the indicated period; the Application is considered filed on the original date. - The Application was transmitted to Respondent on March 26, 2001. - On March 28, 2001, the Office of the Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4. - Respondent filed its Answer on May 10, 2001. - Applicant filed his Reply on May 21, 2001. - The Fund’s Rejoinder was filed on June 20, 2001. - Intervention procedure: - On April 10, 2001, Ms. “Q” submitted an Application for Intervention pursuant to Rule XIV; initial deficiencies were cured within fifteen days and the Application for Intervention was transmitted on April 20, 2001. - Under Rule XIV para. 3, Mr. “P” and the Fund had thirty days to present views on admissibility; both filed comments opposing intervention. - On June 26, 2001, the President of the Administrative Tribunal, in consultation with other members, decided to grant the Application for Intervention; Ms. “Q” was notified and given thirty days to file a responsive pleading, which she filed on July 24, 2001. - Requests for Information: - Pursuant to Rule XVII, paras. 3 and 4, the President issued Requests for Information on July 9, 2001, to each party. - Requests sought information on the Intervenor’s current and past employment status with the Fund and whether any relevant litigation was pending in any jurisdiction. - Responses to these Requests were received on July 20, 24 and 25, 2001. *Source: Administrative Tribunal of the International Monetary Fund judgments and procedural record as presented in the cited excerpts.* ### 9. On July 12, 2001, Applicant made a request under Rule XI ### 9. On July 12, 2001, Applicant made a request under Rule XI ### Procedural history and tribunal actions - On July 12, 2001, Applicant requested under Rule XI of the Rules of Procedure to file an additional pleading. - The pleading had initially been received by the Office of the Registrar on June 6 and was rejected under Rule IX (Reply) because an earlier Reply had already been filed on behalf of Applicant. - On July 25, 2001, the President granted Applicant’s request to have his additional pleading accepted for filing under Rule XI. - Also on July 25, 2001, the President of the Administrative Tribunal, exercising authority under Rule XI in the exceptional circumstances of the case, called on all three parties to submit simultaneous Additional Statements within fifteen days. The Additional Statements provided a final opportunity for the parties to respond to outstanding matters. - Rule XVII, paras. 3 and 4, as cited: - The Tribunal may, subject to Article X, Section 1 of the Statute, order the production of documents or other evidence in the possession of the Fund, and may request information it deems useful to its judgment. - When the Tribunal is not in session, the President shall exercise the powers set forth in this Rule. - Rule XI, as cited, provides: - In exceptional cases, the President may call upon the parties to submit additional written statements or additional documents within a fixed period. - Requirements of Rule VII, Paragraphs 4 and 8, or Rule VIII, Paragraphs 2 and 3, apply to such statements and documents. - Written statements and additional documents shall be transmitted by the Registrar, on receipt, to the other party or parties. - The Tribunal decided not to hold oral proceedings, which neither party had requested, because they were not necessary for disposition of the case. ### Factual background of the case (employment, marriage, residence) - Mr. “P” is an Egyptian national who was a staff member of the International Monetary Fund from January 16, 1982 until his disability retirement took effect on August 1, 1998. - On July 25, 1989, Mr. “P” married Ms. “Q”, also an Egyptian national, in Paris under authority of the Egyptian consul; the marriage was certified as a “legal and religiously recognized marriage according to the Holy Book” and later registered with Egyptian civil authorities. - On the marriage certificate, Mr. “P”’s “residential address” is listed as “Washington USA.” For Ms. “Q”, an address in Egypt is given. - The couple took up residence in Maryland and lived together as husband and wife for more than eight years until Ms. “Q” established a separate residence in Maryland on September 23, 1997. - Mr. “P” continued to live in Maryland until leaving the United States for Egypt in July 1998. ### Proceedings in the Montgomery County Circuit Court (key actions and orders) - September 30, 1997: Ms. “Q” filed a Complaint for Limited Divorce in the Montgomery County (Maryland) Circuit Court. - October 28, 1997: Mr. “P” filed his Answer. - January 21, 1998: Hearing before a Domestic Relations Master. - March 3, 1998: Court entered an Order requiring Mr. “P” to pay alimony pendente lite of $2000 per month. - Mr. “P” participated in Maryland proceedings including an Alternative Dispute Resolution session on May 22 and submitting a Pre-Trial Statement of May 27, 1998. Merits divorce trial was set for January 1999. - June 24, 1998: Ms. “Q” filed a Motion for Injunctive Relief alleging that Mr. “P” had applied for disability retirement and intended to return to Egypt, had indicated she should have no share in his pension, and had been moving assets out of the country; she sought an order requiring Mr. “P” to direct the Staff Retirement Plan that $2000 per month of any disability or other retirement be paid to Ms. “Q”. - June 25, 1998 hearing: Mr. “P” told the Court he intended to remain within its jurisdiction, was paying support, had signed a lease for an apartment for a year, and denied any intention to flee. Court found Ms. “Q” feared he would leave imminently. - Court Order (conclusion of hearing): required Mr. “P” to sign a direction (to be held in the Court’s files) that Ms. “Q” be allocated $2000 per month of any disability or other retirement granted to Mr. “P”. - July 8, 1998: Mr. “P” filed a Motion to Alter or Amend Judgment seeking reconsideration. - July 9, 1998: Ms. “Q” filed an Emergency Motion for Contempt. - July 15, 1998: Court entered a Contempt Order against Mr. “P” for failure to comply with the June 25, 1998 Order. The Court ordered, inter alia: - A body attachment to take the Defendant into custody; - The Defendant to be imprisoned at the Montgomery County Detention Center for a period of 179 days or until he purged himself of contempt by directing in writing to the Secretary of the Administration Committee that $2,000 per month of any disability or other retirement granted to him be paid to the Plaintiff, Ms. “Q”. ### Mr. “P”’s disability retirement, actions in Egypt, and effect on pension - July 17, 1998: The Pension Committee of the Staff Retirement Plan approved Mr. “P”’s application for disability retirement effective August 1, 1998. - July 22, 1998: Mr. “P” appeared before a religious notary in Egypt and obtained a “first revocable divorce” from Ms. “Q”; Ms. “Q” was “absent from the sitting,” and the divorce made no provision for division of property or support. The divorce was registered with the local Civil Registration Office in Egypt on July 25, 1998. - July 28, 1998: Ms. “Q” brought the Maryland Court’s Orders to the attention of the Administration Committee of the SRP; Mr. “P” informed the Fund of the Egyptian divorce. - July 29, 1998: The Administration Committee decided to withhold and place in escrow the disputed portion of the pension payments on the ground that there existed a dispute under Section 9.10 of the SRP. - November 20, 1998: Mr. “P” filed an application with the IMF Administrative Tribunal contesting the legality of the Administration Committee’s decision. - March 19, 1999: The Administration Committee reversed its decision to withhold a portion of Mr. “P”’s pension payment on the basis of the then applicable SRP provisions. The Administrative Tribunal issued Order No. 1999-2 (Mr. “P”, Applicant v. International Monetary Fund, Respondent) (Mootness of Application) (August 12, 1999), treating as moot the Application then pending in the Tribunal. - Note on disability pension calculation (SRP, Section 4.3 (b)): - A disability pension equals the normal pension payable if the normal retirement date had fallen on the date of disability retirement, using highest average remuneration and eligible service at time of disability retirement. - In no event shall such pension be less than the smaller of: - (i) 50 percent of such highest average gross remuneration; or - (ii) the normal pension that the participant would have received if he had remained a participant until his normal retirement date without change in such highest average remuneration. ### Maryland merits trial, findings, and Judgment of Absolute Divorce (March 2, 2000) - January 24, 2000: Merits divorce trial held; Mr. “P” neither appeared nor was represented. - Family Division Master findings included: - Mr. “P” had been in arrears of his alimony payments from July 1998 onward. - 56 per cent of Mr. “P”’s pension entitlement was acquired during the marriage to Ms. “Q”. - The findings were copied to Mr. “P” at his address in Egypt. - March 2, 2000: Montgomery County Circuit Court entered Judgment of Absolute Divorce with specific orders: - ADJUDGED that the Plaintiff, Ms. “Q”, be granted an absolute divorce from the Defendant, Mr. “P”. - ORDERED that the Plaintiff is granted a monetary award in the amount of $95,016.50. - ORDERED that the Plaintiff shall be entitled to a continuing share of the Defendant’s ongoing pension entitlement in the amount of 50% of the marital portion (56%) of all monies due the Defendant under his retirement annuity from the International Monetary Fund, plus a proportionate share of all cost of living supplements. - ORDERED that the Plaintiff shall be entitled to 100% of all survivor benefits under the Defendant’s pension attributable to the portion of the pension earned during the marriage. - ADJUDGED that the Defendant is in arrears of pendente lite alimony in the amount of $38,000.00 through January 24, 2000. - ORDERED that the Plaintiff is granted reasonable necessary costs of her attorney’s fees in the amount of $27,000.00 to be paid by the Defendant. - ORDERED that judgment is entered in favor of the Plaintiff against the Defendant in the amount of $160,016.50, representing the amounts awarded. - According to Applicant and Intervenor: - No appeal has been taken by Mr. “P” from the Maryland Judgment of Absolute Divorce. - No litigation is pending in the courts of any jurisdiction that would affect the finality of that Judgment. - The March 2, 2000 Judgment of Absolute Divorce is the basis for Ms. “Q”’s March 9, 2000 Request to the Administration Committee of the Staff Retirement Plan; the Committee’s decision on that Request is the decision contested by both Applicant and Intervenor in the Administrative Tribunal. ### Channels of administrative review under the SRP and Administration Committee - The case of Mr. “P” (No. 2) v. IMF is the first to come to the Administrative Tribunal through channels of administrative review established in 1999 by the Administration Committee of the Staff Retirement Plan. - The Rules of Procedure of the Administration Committee (notified by Staff Bulletin No. 99/17 (June 23, 1999)) explain when an individual has fulfilled the requirement of exhausting channels of administrative review on a matter before the Administration Committee of the SRP. - The Committee’s Rules of Procedure are to be read together with: - (a) the Fund’s Articles of Agreement; - (b) the SRP and the rules made thereunder; and - (c) the Statute and Rules of Procedure of the Administrative Tribunal. (Administration Committee Rules of Procedure, Rule I (2).) - Key provisions of the Administration Committee’s Rules of Procedure: - Rule II (1): Any person claiming any rights or benefits under the Plan may submit to the Committee a Request for a Decision concerning the administration, application, or interpretation of the Plan in his individual case. - Rule II (6): Once a Decision is rendered by the Committee, it is transmitted to the Requestor and to any other party identified to and accepted by the Committee as a person with an interest in the Decision. - Rule VIII: Permits review of Decisions by the Committee, upon request or on the Committee’s own initiative, within ninety days. - An Application for Review may be submitted by the original Requestor or by any other person claiming rights or benefits under the Plan who wishes to dispute a Decision (Rule VIII (1)). - The Administration Committee must notify the applicant for review of the results within three months of the application for review (Rule VIII (4)). - SRP Section 9.10 (as cited) allows the Employer to withhold payment where there is any dispute or doubt concerning identity or rights of any person entitled to payments and to defer payment until satisfied or until dispute is settled by arbitration, a court of competent jurisdiction, or by written stipulation binding all parties. *Judgment No. 2001-2 (Mr. "P" (No. 2)) of the IMF Administrative Tribunal.* ### 34. Rule X of the Administration Committee Rules of Procedure sets ### Rule X of the Administration Committee Rules of Procedure sets forth exhaustion requirements and related case materials ### Exhaustion of administrative review — Rule X and Article V (Statute of the Administrative Tribunal) - Rule X, paragraph 1 (Administration Committee Rules of Procedure) deems the channel of administrative review for a Request submitted to the Committee to have been exhausted for purposes of filing an application with the Administrative Tribunal when, in compliance with Article V of the Statute: - (a) three months have elapsed since an Application for review of a Decision was submitted to the Committee in accordance with Rule VIII, paragraph 1 and the results of the review have not been notified to the Applicant; or - (b) the Committee has notified the Applicant of the results of any review of a Decision, or its decision to decline to review a Decision; or - (c) the conditions set out in Article V, Section 3(c) of the Statute have been met. - Rule X, paragraph 2 provides that the channel of administrative review for: - (a) a Request or a Decision referred by the Committee to the Pension Committee for decision in accordance with Rule V; or - (b) a matter otherwise before the Pension Committee for decision, shall not be deemed to have been exhausted until a decision has been made by the Pension Committee and notified to the Requestor or a person otherwise seeking the decision. If a Request is referred back by the Pension Committee to the Committee for decision, in accordance with Rule V, paragraph 3, then Rule X, paragraph 1 shall apply. - Article V of the Statute (quoted and to be read in conjunction with Rule X) specifies exhaustion triggers: - Section 1: an application may be filed only after the applicant has exhausted all available channels of administrative review. - Section 2 (where channels include the procedure for complaints and grievances involving 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. - Section 3 (where 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. - Section 4: all channels shall be deemed to have been exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal. ### Specific SRP Rules and procedural steps relevant to the dispute - The Administration Committee’s 1999 Rules Under Section 11.3 of the Staff Retirement Plan (SRP) permit a spouse or former spouse of an SRP participant (or retired participant) to request the Administration Committee to give effect to a court order requiring that spouse or child support payments or division of marital property be made from SRP benefits otherwise payable to the participant. - Under those 1999 Rules: - If the SRP participant fails to make a direction to the Plan pursuant to the relevant court order within thirty working days of its issuance, the spouse or former spouse who is party to the order may submit a Request directly to the Administration Committee to give effect to that order. - The participant is notified of the Request and permitted thirty working days in which either to consent or object to the Request. (1999 Rules of the Administration Committee Under Section 11.3 of the Staff Retirement Plan, 1(b).) ### Chronology and operative facts in the Mr. “P” matter (as stated) - Maryland Judgment of Absolute Divorce dated February 11, 2000 and entered by the Clerk of the Court on March 2, 2000; the Judgment states the Plaintiff [Ms. “Q”] shall be entitled to a continuing share of the Defendant’s [Mr. “P”’s] ongoing pension entitlement in the amount of 50% of the marital portion (56%) of all monies due the Defendant under his retirement annuity from the International Monetary Fund, plus a proportionate share of all cost of living supplements. - March 9, 2000: Ms. “Q” submitted her Request to the Administration Committee pursuant to Section 11.3 of the SRP. - April 10, 2000: Secretary of the Administration Committee notified Mr. “P”, through counsel, of Ms. “Q”’s Request, permitting him thirty working days to file consent or objection. - May 15, 2000: Mr. “P”, by counsel, opposed the Request. - June 15, 2000: Ms. “Q”’s counsel filed a Response to Mr. “P”’s May 15, 2000 submission. - July 10, 2001: Mr. “P”’s counsel replied to that Response (reply date preserved as in source). - July 27, 2000: Administration Committee issued its Decision by letter to Mr. “P”’s attorney (copied to Mr. “P”, Ms. “Q”, and Ms. “Q”’s attorney), stating in pertinent part: - the Committee will not resolve questions where there is a bona fide dispute about the efficacy, finality or meaning of an order or decree and activation of a request and associated payment may be suspended until such dispute or ambiguity is settled; - under Section 11.3 of the SRP and the Rules, the Committee may withhold payments pending resolution of a dispute regarding payments under the SRP and deposit such payments in the Bank-Fund Staff Federal Credit Union in an interest bearing account until entitlement to payment is resolved; - the Committee decided to withhold from Mr. [“P”]’s early retirement pension the payments claimed by Ms. [“Q”] (28%) and to deposit such payments in escrow until such time as the dispute over entitlement to the payments is satisfactorily resolved; and - the Committee encourages the parties to come to a mutual agreement upon which the Committee can take action. - September 27, 2000: Mr. “P” filed an Application for Review of the Administration Committee’s Decision pursuant to Rule VIII of the Administration Committee’s Rules of Procedure (no right of review provided within the terms of the Committee’s Rules Under Section 11.3 of the SRP). - November 30, 2000: Administration Committee informed Mr. “P” it found no basis to reverse its Decision of July 27, 2000, holding that withholding of the disputed portion of the pension would continue “. . . until this matter has been resolved by the agreement of parties, or otherwise.” The letter informed Mr. “P” of his right to file an Application with the Administrative Tribunal within three months of the notification. - February 28, 2001: Mr. “P” filed his Application in the Administrative Tribunal. ### Applicant’s principal contentions (summarized as presented) - On the merits: 1. The Rules of the Administration Committee of the SRP under §11.3 do not authorize the escrow of pension payments in the circumstances of this case. 2. Rule 1(b) of the Rules of the Administration Committee presumes a foreseeable conclusion to the controversy between the parties, and therefore is not applicable here. 3. The Egyptian divorce, which was granted prior to the Maryland Judgment of Absolute Divorce, was final and legal, and was entitled to recognition under the principles of comity applied by Maryland courts; the Maryland court therefore was without subject matter jurisdiction to enter its Judgment of February 11, 2000, as no valid marriage existed at that time. 4. Under Maryland law, the Egyptian divorce is presumed valid absent evidence to the contrary; there can be no showing that the Egyptian divorce, involving two Egyptian nationals, was invalid for lack of jurisdiction, violation of due process, or otherwise offending public policy. Ms. “Q” was served in the Egyptian divorce action at her domicile in Egypt and her abode in Maryland. Her attorney also received service of process on her behalf at her office in Maryland. 5. Under Egyptian conflict-of-law rules (Egyptian Civil Code, Arts. 12 and 13), the effects of the marriage, including the patrimonial effects, and the consequences of its termination are subject to the law of nationality, i.e. Egyptian law. 6. As Egyptian law mandates a total patrimonial separation of assets between the spouses throughout the marriage and thereafter, Ms. “Q” could not be entitled to claim any rights to Mr. “P”’s pension. - Opposing admissibility of the Application for Intervention: 1. Applicant for Intervention lacks standing to intervene; that Ms. “Q” has a right that may be affected by the Judgment to be given by the Tribunal is an insufficient basis for intervention. 2. Rights Ms. “Q” claims by virtue of the Maryland Court’s Judgment of Absolute Divorce are legal claims that will have to be resolved by the courts, not the International Monetary Fund. 3. The Articles of Agreement of the International Monetary Fund, and the International Organizations Immunities Act, 22 U.S.C. §288 et seq., provide the IMF and its assets immunity from judicial process; Ms. “Q”’s remedy, if any, must be found under an express waiver of immunity by the Fund. ### Respondent’s principal contentions (summarized as presented) - On the merits: 1. The Administration Committee of the SRP acted properly and in accordance with its Rules in deciding to withhold and place in escrow a portion of Applicant’s pension benefits. 2. The Committee properly decided that a bona fide dispute existed as to the application, interpretation, effectiveness, finality or validity of the court order which it had been asked to enforce; the Committee obtained an opinion from Egyptian legal counsel (advising that the Egyptian divorce was valid under Egyptian law) and relied upon the Fund’s Legal Department regarding the Maryland Judgment. 3. The legality of the Committee’s action would be subject to challenge only if it could be shown that the Committee improperly determined that a bona fide dispute existed. 4. Section 11.3 of the SRP and the Administration Committee’s Rules thereunder are valid and legal, reflecting a balancing of the Fund’s interest in the equitable treatment of staff of different nationalities with its interest in ensuring that staff (and former staff) not use the organization’s immunities to avoid personal legal obligations. 5. Placing the disputed amounts in escrow is intended to protect the rights of both parties, who must resolve the dispute between themselves or through the courts. 6. As an international organization, the Fund may not favor the legal system of one member country over another; there are no universally accepted principles for resolving conflicts such as the one presented. 7. The underlying conflict of laws issue is not appropriate for resolution by the Administration Committee of the SRP and need not be reached by the Administrative Tribunal. - Opposing admissibility of the Application for Intervention: 1. Ms. “Q” is not a staff member; nor is she an enrollee in, or beneficiary under, the SRP. Therefore, she is not a person to whom the Tribunal is open under Article II, Section 1 of the Statute and is not a member of the class of persons permitted to intervene under Rule XIV of the Tribunal’s Rules of Procedure. 2. Section 11.3 of the SRP that permits a spouse or former spouse to request that a court order be given effect does not create any rights or interests in the SRP (Section 11.3 states “[a] direction or accepted request or payment incident thereto shall not convey to any person an interest in the Retirement Fund of the Plan or give any elective rights under the Plan to such person.”). Ms. “Q” has no beneficial interest in or rights under the Plan; rather, she is in the position of a creditor vis-à-vis Mr. “P”. 3. While the Application for Intervention should be denied, Ms. “Q” should be allowed to submit her views to the Tribunal as an amicus curiæ pursuant to Rule XV of the Tribunal’s Rules of Procedure, as these views are relevant to the Tribunal’s consideration of the Application. ### Intervenor’s principal contentions (summarized as presented) - On the merits: 1. The Maryland Judgment, entitling Ms. “Q” to a portion of Mr. “P”’s pension, is valid and should be given effect immediately. 2. The Maryland Court properly rejected the argument that principles of comity divested the Maryland Court of subject matter jurisdiction. 3. The Maryland Court specifically found that, in the circumstances of the case, it continued to have jurisdiction to grant a final divorce and to order relief concerning the disposition of marital property; the action was filed in 1997 and Mr. “P” participated in the proceedings in Maryland until he left the country in July 1998, while Ms. “Q” has continued to be domiciled in Maryland throughout. 4. The Maryland Court further found that even had a final divorce been obtained abroad by Mr. “P”, under Maryland Family Law §8-212 and §11-1105, the Maryland Court would continue to have authority to enter orders concerning the disposition of marital property and support. 5. The Maryland Court properly obtained jurisdiction over Mr. “P”, who actively participated in the litigation until July 1998, thereby submitting himself to the Court’s jurisdiction. 6. By contrast, the Egyptian divorce would not be binding under principles of comity, as there was no personal jurisdiction over Ms. “Q” in the Egyptian action; Ms. “Q” has no domicile in Egypt. Nor did she receive service in Maryland or via her counsel. The Egyptian divorce offends the public policy of Maryland. *Source: IMF Administrative Tribunal Reports, Judgment No. 2001-2 (Mr. “P” (No. 2)); Administration Committee Rules of Procedure, Rule X; Statute of the Administrative Tribunal, Article V; 1999 Rules Under Section 11.3 of the Staff Retirement Plan.* ### 7. The Egyptian action did not involve the exercise of jurisdiction over ### 7. The Egyptian action did not involve the exercise of jurisdiction over Ms. “Q” or over any property of the parties, including the IMF pension ### Background and procedural posture - The Egyptian action did not purport to deal with support or marital property issues and, on its face, was not in conflict with the Maryland Judgment. - Prior to his marriage to Ms. “Q”, Mr. “P” was divorced by decree of a Virginia court from his first wife, who was also an Egyptian national. - During the pendency of the proceedings, the President of the Administrative Tribunal, pursuant to Rule XIV, para. 3 of the Rules of Procedure, and in consultation with the other members of the Tribunal, decided to admit the Application for Intervention filed by Ms. “Q”. (See Judgment No. 2001-2 (Mr. “P” (No. 2)).) - The Fund and Mr. “P” opposed Ms. “Q”’s Application for Intervention; the Fund suggested she be invited to communicate as amicus curiæ. ### Statutory requirements for intervention - Intervention in the Administrative Tribunal is governed by Article X of the Tribunal’s Statute and Rule XIV of the Rules of Procedure. - Article X, Section 2(b) provides for “intervention by persons to whom the Tribunal is open under Section 1 of Article II, whose rights may be affected by the judgment.” - Two statutory requirements for intervention (as reiterated in Rule XIV, para. 1): - The intervenor must be within the Tribunal’s jurisdiction ratione personae. - The intervenor must have a right which may be affected by the judgment to be given by the Tribunal. - Distinction between intervenor and amicus curiæ: - An intervenor, once admitted, “. . . thereafter participate[s] in the proceedings as a party,” (Rule XIV, para. 3). - An amicus curiæ does not become a party and merely communicates views to the Tribunal (Rule XV). ### Whether Ms. “Q” is a person to whom the Tribunal is open (Article II, Section 1) - Article II, Section 1 of the Statute reads in relevant part: - Article II, 1.(a): competence for “a member of the staff challenging the legality of an administrative act adversely affecting him;” - Article II, 1.(b): competence for “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 admissibility of Ms. “Q”’s Application for Intervention turned solely on whether she fell within the Tribunal’s jurisdiction ratione personae—i.e., whether she could have filed an Application contesting the Administration Committee’s Decision. - The fundamental question: whether the amendment of Section 11.3 of the SRP, granting spouses and former spouses of SRP participants the right to request the Fund to give effect to domestic relations orders, provides a parallel right of review in the Administrative Tribunal when the Committee’s decision is adverse to the former spouse but not to the SRP participant. ### Positions of the parties on beneficiary status under the SRP - The Fund’s position: - Ms. “Q” is neither a staff member nor an enrollee in or beneficiary under the SRP. - Section 11.3 of the SRP provides: “A direction or accepted request or payment incident thereto shall not convey to any person an interest in the Retirement Fund of the Plan or give any elective rights under the Plan to such person.” (Section 11.3, SRP.) - Hence, the Fund argued Ms. “Q” is a creditor vis-à-vis Mr. “P”, not a beneficiary, and thus lacks standing under Article II, Section 1(b). - Mr. “P”’s position in Opposition: - Did not address directly whether Ms. “Q” is within Article II, Section 1, but argued that having a right that may be affected is “an insufficient basis” for intervention. - Asserted that Ms. “Q”’s interest should be resolved by courts and any remedy would require an express waiver of the Fund’s immunity. ### Tribunal precedent and interpretive approach - The Tribunal had recently addressed reach of jurisdiction ratione personae in Estate of Mr. “D” (IMFAT Judgment No. 2001-1 (March 30, 2001)): - The Tribunal exercised jurisdiction over a successor in interest to a non-staff enrollee in the Fund’s Medical Benefits Plan. - The Tribunal relied on the Commentary to the Statute explaining Section 1(b) allows individuals who are not staff but “have rights under these [benefit] plans” to bring claims concerning decisions arising under or concerning the plans. - The Tribunal concluded examples in the Commentary were not exhaustive and that the structure of Fund benefit plans supported inclusion of successors in interest to non-staff enrollees. - Distinction from Mr. “A” (IMFAT Judgment No. 1999-1 (August 12, 1999)): - In Mr. “A”, the Tribunal found exclusion of contractual employees from jurisdiction ratione personae was explicit and intentional; contractual employees are not encompassed by IMFAT jurisdiction ratione personae. - The Tribunal noted the express statutory definition of “member of the staff” and the specific facts of Mr. “A”’s appointment letter. ### Whether Section 11.3 precludes Tribunal jurisdiction over persons like Ms. “Q” - The Fund argued Section 11.3 should be read to exclude persons receiving benefits pursuant to accepted requests from being “beneficiaries” under the Plan. - Tribunal analysis and findings: - Nowhere in Section 11.3 does it state that a person who receives benefits on the basis of a direction or accepted request “is not a ‘beneficiary’ under the Plan.” - Section 11.3 uses the term “designee” but also refers to the “benefit payable to the spouse or former spouse” (emphasis supplied). - The term “beneficiary” is not defined anywhere in the SRP Plan document (SRP, Article I—Definitions). - The absence of “elective rights” under Section 11.3 is not dispositive, because elective rights (e.g., election of early retirement pension (Section 4.2), reduced pension with survivor pension (Section 4.6), commutation to a lump sum (Section 15.1)) are generally reserved to SRP participants or retired participants. - The Tribunal emphasized that the “elective rights” referred to in Section 11.3 are distinct from “rights” under the Plan more generally, as contemplated by the Statute’s Commentary. - The Tribunal found Section 11.3 grants rights under the Plan to spouses or former spouses to request the Administration Committee to give effect to domestic relations orders. - The SRP’s Administration Committee has an administrative review procedure open to “any person claiming any rights or benefits under the Plan,” which Ms. “Q” utilized by filing her Request to give effect to the Maryland Judgment (Administration Committee Rules of Procedure, Rule II (1)). ### Procedural decision and rationale to admit intervention - The Tribunal’s President, in consultation with Associate Judges, admitted Ms. “Q”’s Application for Intervention on the basis that: - Ms. “Q” is a person who has a right under the benefit plan in question (SRP Section 11.3). - That right allows a “spouse or former spouse of a participant or retired participant who is a party to the court order or decree [to] request that the Administration Committee give effect to such court order or decree and treat the request in the same manner as if it were a direction from a participant or a retired participant.” (SRP, Section 11.3.) - The Tribunal did not deem it necessary to resolve the question of whether examination of the merits of Ms. “Q”’s claim under Section 11.3 was required to decide the admissibility question; the admissibility decision was made on the basis that she possessed a right under the Plan. *IMF Administrative Tribunal, Judgment No. 2001-2 (Mr. "P" (No. 2)), IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. II* ### 64. It is also noted that the scope of the Administrative Tribunal’s jurisdic- ### Judgment No. 2001-2 (Mr. "P" (No. 2)) ### Jurisdiction ratione personae and intervention - The Administrative Tribunal’s jurisdiction ratione personæ under Article II, Section (1)(b) is narrow, limiting jurisdiction ratione materiæ in such cases to challenges to administrative acts taken under the applicable benefit plan and adversely affecting the applicant. - The President of the Administrative Tribunal concluded that the Applicant for Intervention (Ms. “Q”) was, for purposes of Article II, Section 1 of the Tribunal’s Statute, a beneficiary under a Fund benefit plan for the purpose of challenging the legality of the Administration Committee’s Decision on her Request to give effect to the Maryland order. - Ms. “Q”’s Application for Intervention was granted. ### Implementation of Rule XIV, para. 3 — participation of intervenor as a party - Granting Ms. “Q” party status served two purposes: - Allowed final adjudication of her rights vis-à-vis the contested Decision of the Administration Committee. - Procedurally, permitted Ms. “Q” to engage in an exchange of pleadings with the other parties, receiving notice of the Applicant’s and Respondent’s respective arguments and an opportunity to respond. - The Rules of Procedure contain no provision for suspension of the exchange of pleadings on the merits while an application for intervention is pending. - At the conclusion of the period for submission of the parties’ views on admissibility of the Application for Intervention, only one pleading on the merits remained to be filed: Respondent’s Rejoinder. - The Tribunal treated Ms. “Q”’s Application for Intervention as a presentation of her position on the merits (factual presentation and legal argumentation were not limited to admissibility). - Ms. “Q” was given thirty days from the notification of the admissibility of the Application for Intervention to file a responsive pleading addressing the merits pleadings filed by Applicant and Respondent. ### Procedural note on intervenor positions - The circumstances were unusual: an intervenor typically shares similar factual and legal positions to that of an applicant. In this case, both Mr. “P” and Ms. “Q” were adversely affected by the same administrative act of Respondent, but their interests on the merits were adverse to one another’s. ### The Fund’s internal law on giving effect to domestic relations orders - The case arises under the Fund’s revised policy, adopted in 1999, of giving effect, upon request of a spouse or former spouse of an SRP participant or retired participant, to a court order requiring spouse or child support payments or division of marital property from SRP benefits otherwise payable to the participant. - The evolution of the Fund’s policy has been influenced by adverse publicity about non-compliance by some international civil servants with local court orders and by responses adopted by the United States Government. ### The IMF’s immunity from judicial process - Article IX of the IMF Articles of Agreement establishes: - Section 1: Purposes of Article — privileges, immunities, and status are accorded to the Fund to enable it to fulfill its functions. - Section 2: The Fund possesses full juridical personality and capacity (i) to contract; (ii) to acquire and dispose of immovable and movable property; and (iii) to institute legal proceedings. - Section 3: Immunity from judicial process — “The Fund, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.” - Section 4: Immunity from other action — property and assets are immune from search, requisition, confiscation, expropriation, or any other form of seizure by executive or legislative action. - Section 5: Immunity of archives — archives of the Fund shall be inviolable. - Section 6: Freedom of assets from restrictions — property and assets shall be free from restrictions, regulations, controls, and moratoria to the extent necessary to carry out Fund activities. - Section 7: Privilege for communications — official communications accorded same treatment as official communications of members. - Section 10: Each member shall take action in its territory to make effective the principles set forth in this Article and inform the Fund of detailed action taken. - The Fund is a Specialized Agency under the United Nations Convention on the Privileges and Immunities of the Specialized Agencies; Article VI, Section 23 of that Convention states: “Each specialized agency shall co-operate at all times with the appropriate authorities of member States to facilitate the proper administration of justice, secure the observance of police regulations and prevent the occurrence of any abuses in connexion with the privileges, immunities and facilities mentioned in this article.” - In the United States, the IMF is covered by the International Organizations Immunities Act, 22 U.S.C. § 288 et seq. (“IOIA”). - Section 288a provides that international organizations “shall enjoy the status, immunities, exemptions, and privileges set forth in this section,” including: - (b) Organizations, their property and assets shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent such organizations may expressly waive their immunity. - (c) Property and assets shall be immune from search, unless immunity be expressly waived, and archives shall be inviolable. - The U.S. Court of Appeals for the D.C. Circuit upheld immunity of international organizations under the IOIA in wage garnishment actions (Atkinson v. Inter-American Development Bank, 156 F. 3d 1335 (D.C. Cir. 1988)). - The IMF’s practice had been to decline to comply with wage garnishment orders based upon its immunity. - Section 9.1 of the Fund’s Staff Retirement Plan provides that all contributions, assets, funds, and income of the Plan are the property of the IMF and held and administered by the Employer as the Retirement Fund for exclusive use in providing benefits and paying expenses of the Plan. ### Fund’s alternative steps to address non-compliance while preserving immunity - Because IMF immunities protect both the Organization and its retirement fund from judicial process, the Fund took alternative steps to provide mechanisms for giving effect to court orders arising from marital relationships while preserving immunities. ### 1995 changes to the Staff Retirement Plan (SRP) - In 1995, Section 11.3 of the SRP was amended to allow participants and retired participants, on a voluntary basis, to direct the Plan to make payments to spouses or former spouses pursuant to legal separation or divorce, as required by a court order or decree: - Effective language: “From June 1, 1995, the Plan will permit a participant or retired participant to make an irrevocable instruction to have the Plan pay a part of his or her pension benefits to a former spouse, provided that the instruction is made to satisfy the marital obligations of a divorce or legal separation, and that the sum to be paid represents an amount needed to meet alimony or support obligations, or to effect a division of assets relating to a divorce or legal separation.” - In May 1996, Rules of the Administration Committee under the amended Section 11.3 were notified to the staff. - Rule 1(a), 1995 Rules: activation of a direction to the Plan was contingent on review by the Fund’s Legal Department to determine the court order was “in order . . . and not inconsistent with the provisions of the Plan and the [Administration Committee’s] Rules.” - Rule 1(b), 1995 Rules: the Administration Committee will not interpret agreements between spouses or resolve questions where there is a bona fide dispute about efficacy, finality or meaning of an order; activation and associated payment may be suspended until ambiguity or dispute is settled. - The 1995 amendment and associated Rules under Section 11.3 gave rise to Mr. “P”’s first case before the Administrative Tribunal. ### 1998 Code of Conduct - In July 1998, the Fund issued a Code of Conduct for current staff addressing workplace and external conduct. - The Code explicitly states that failure to comply with court-mandated spousal or child support obligations is a violation: - II. Basic Standard of Conduct, paragraph 8: emphasizes observance of local laws and avoidance of actions perceived as abuse of privileges and immunities; if the Fund receives a lawful court order instructing it to withhold an amount of salary to satisfy an outstanding legal obligation, the Fund “will not allow the staff member to take undue advantage of the fact that it is immune from such orders.” - VII. Examples, Basic standard of conduct, example 1: “Yes. Staff members may not take improper advantage of the fact that the Fund is not subject to mandatory wage garnishments in order to avoid such obligations.” - The Code acknowledges limits on the Fund’s ability to investigate alleged local law violations and frames compliance enforcement primarily via lawful orders and the Fund’s internal measures. ### 1998 Diplomatic Note from the U.S. Secretary of State (July 8, 1998) - The July 8, 1998 Diplomatic Note sought voluntary efforts from international organizations designated under the IOIA to ensure court-ordered child- and spouse-support payments involving employees are made and that employees are not permitted to use organizational immunity to shield themselves from personal obligations. - The covering letter urged international organizations to consider social responsibility to spouses and children of staff and stated: “Invoking immunity, if unaccompanied by measures which effectively address the difficulties that institutional immunity creates for spouses and children, is wrong. I believe that the International Monetary Fund must be a model for the highest standards of social responsibility, and thus the means must be found to carry out the right and just course of action.” - The Diplomatic Note observed it is “highly inappropriate for international organizations to allow their privileges and immunities to be used by employees of the organizations to avoid meeting their court-ordered obligations to divorced spouses and dependent children.” - The Secretary of State requested that steps be taken promptly to ensure: - organizations voluntarily provide court-ordered or subpoenaed information required to determine the salary and benefits of an employee involved in divorce and family law proceedings; and - organizations voluntarily take steps to enforce court-ordered payments to divorced spouses and dependent children. - The Note warned that perceptions that immunities are being used to avoid obligations could lead to non-voluntary remedies, including diminution of privileges and immunities under the IOIA or protracted litigation. *Judgment No. 2001-2 (Mr. "P" (No. 2)), IMF Administrative Tribunal Reports, Vol. II.* ### 80. As a result of the mounting concern surrounding the issue, the IMF ### 80. As a result of the mounting concern surrounding the issue, the IMF ### Formation of working group and 1999 legal changes - A working group was formed to consider measures to address non-compliance with court orders arising from marital relationships. - By mid-1999, the Fund had adopted several significant changes to its internal law to give effect to such orders, with regard to both current and former members of the staff, at the request of a spouse or former spouse of a staff member or retiree. - The present case of Mr. “P” arises under the 1999 revisions. ### Staff Bulletin No. 99/11 (May 4, 1999) — two policy changes - The Fund will respond directly to court orders which seek information, in the context of divorce and child support proceedings, as to an employee or former employee’s compensation, SRP benefits and beneficiaries. - At the request of a spouse or former spouse, the Fund will give effect to wage garnishment or withholding orders; the affected employee or former employee is given notice and an opportunity to object to the Fund’s intention to give effect to the order. - Procedural protections in the attachment to the Staff Bulletin include: - The Fund employee will be given written notice and a copy of the request and will be given at least ten working days to object to the Fund complying with the request. - If the employee objects, the employee may challenge the adequacy of the order for failure to meet specified criteria: - The order resulted from proceedings in which (i) a reasonable method of notification was employed; (ii) a reasonable opportunity to be heard and to contest the proposed actions was afforded to the persons affected; and (iii) the judgment was rendered by a court of competent jurisdiction and in accordance with such requirements as were necessary for the valid exercise of power by the court. - The order was the product of fair proceedings. - The order is final and binding on the parties and not subject to or pending appeal. - The order does not conflict with and is not inconsistent with any other valid court order or decree. - “A court order will be given effect unless the employee demonstrates that the court order does not satisfy the criteria set forth above, in which case the parties concerned will be notified in writing of the reasons for such determination.” ### Nature and limits of the Fund’s action under Staff Bulletin No. 99/11 - The Fund emphasized the new procedures were being undertaken “voluntarily,” and “without waiving [the Fund’s] privileges and immunities.” - The Staff Bulletin noted that the Fund’s Code of Conduct regulates current staff members and that the new policies would apply to retirees as well. - The Staff Bulletin stated: “The changes announced in this Bulletin simply reinforce the importance the Fund places on its employees—both active and retired—honoring their personal legal obligations and conducting themselves in a manner that does not reflect negatively on the Fund as an employer.” ### Staff Bulletin No. 99/12 (June 9, 1999) — 1999 revision of SRP Section 11.3 - The Fund announced changes to Section 11.3 of the Staff Retirement Plan approved by the Fund’s Executive Board on May 26, 1999; new rules of the Administration Committee under the revised SRP Section 11.3 were attached. - Purpose: to address retired SRP participants who have moved out of the jurisdiction of the court that issued the applicable domestic relations order and who, as former staff, are no longer governed by the Code of Conduct. - SRP Section 11.3 (1999 Revision) provisions: - A participant or retired participant may direct in writing to the Secretary of the Administration Committee that a benefit payable during his life under the Plan be paid to one or more former spouses or a current spouse from whom there is a decree of legal separation. - If a participant or retired participant fails to submit a timely written direction in compliance with the court order or decree, a spouse or former spouse who is a party to the court order or decree may request that the Administration Committee give effect to such court order or decree and the Committee will treat the request in the same manner as if it were a direction from a participant or retired participant. - “Pending the Administration Committee’s consideration of such request or the resolution of a dispute between a participant or retired participant and the spouse or former spouse regarding payment of amounts payable under the Plan, the Administration Committee may withhold, in whole or in part, payments otherwise payable to the participant or retired participant or the spouse or former spouse.” ### 1999 Rules of the Administration Committee under SRP Section 11.3 — procedures and criteria - Notice and response period: - “The Secretary of the Administration Committee will give a participant or retired participant written notice of such a request from a spouse or former spouse. The participant or retired participant will be allowed, as the Administration Committee shall specify, at least thirty (30) working days either to consent or to object to the request, giving a full written explanation for any objection.” - Four substantive criteria creating a presumption of validity for a court order or decree: - (A) is valid by reason that: - (1) a reasonable method of notification has been employed and a reasonable opportunity to be heard has been afforded to the persons affected; and - (2) the judgment has been rendered by a court of competent jurisdiction rendition [sic] and in accordance with such requirements of the state of as are necessary for the valid exercise of power by the court; - (B) is the product of fair proceedings; - (C) is final and binding on the parties; and - (D) does not conflict and is not inconsistent with any other valid court order or decree. - Objection handling: - If a party objects to giving effect to a court order or decree, the Administration Committee will assess its adequacy based on the criteria listed in (A) through (D) and “will not review the court order or decree concerning the merits of the case and will not attempt to review the judgment of the court regarding the rights or equities between the parties.” - If the Administration Committee finds that the court order or decree does not satisfy any one or more of the criteria, the parties will be notified and the order or decree will not be given effect unless and until the deficiencies are remedied. - If there is an inconsistency or conflict under (D) with the court order or decree that was the basis of a prior direction or accepted request, neither order or decree will be given effect unless and until the conflict or inconsistencies are resolved. ### Limitations on the Administration Committee’s authority; bona fide disputes - The Committee will take no final action if there is a “bona fide dispute” regarding the validity of the court order; the disputed amount may be placed in escrow. - “If the Administration Committee is satisfied that there is a bona fide dispute as to the application, interpretation, effectiveness, finality or validity of the court order or decree, no action shall be taken on the request unless and until the matter is resolved to the satisfaction of the Administration Committee.” - The Committee will not: - interpret agreements between spouses or former spouses, directions or accepted requests to pay or orders or decrees of courts in cases of ambiguity, or - resolve questions where there is a bona fide dispute about the efficacy, finality or meaning of an order or decree. - Activation of the direction or accepted request and any associated payment may be suspended until such ambiguity or dispute is settled in the judgment of the Administration Committee. ### Conflict of laws issues relevant to the dispute (Egypt and Maryland) - Underlying the dispute between the Applicant and Intervenor are differing approaches to divorce law and choice of law under Egypt and the United States (State of Maryland). The Egyptian divorce under Egyptian law - On July 22, 1998, Mr. “P” obtained a “first revocable divorce” from Ms. “Q” by declaration before a religious notary in Egypt; Ms. “Q” was not present, nor did she have prior notice of the declaration. The divorce involved no provision for marital support or division of property. - Explanation from an Egyptian attorney provided to the IMF Legal Department: - “under Egyptian Law, a Moslem husband may divorce his wife by making declaration to this effect before a duly licensed Religious Notary in the presence of two witnesses notwithstanding wife being present or not. This means that the husband does not need to go to court in order to obtain a divorce order.” - “In other words, there had been no legal proceedings initiated with any court in Egypt, nor were such proceedings at all required, in order for the husband to obtain the divorce he seeks.” - “I reiterate that this is not a divorce judgment.” - Access to divorce differs for a wife, who must bring a court action to effect a divorce, unless there has been an agreement otherwise in the contract of marriage. - Meaning of “first revocable divorce”: the husband has a two-month period in which he may restore the marital relationship; once the two-month period has elapsed the divorce is considered final. - There is no dispute that in this case the two-month period has run without restoration and that it had run before the entry of the Judgment of Absolute Divorce by the Maryland Court. - Egyptian law does not provide for mandatory division of property as a consequence of divorce; division of property can be effected through an agreement made at the time of marriage. - In the absence of such an agreement, a divorced wife could seek a court judgment for a deferred portion of the dowry as agreed in the certificate of marriage, for “living support alimony” of one year, and for “enjoyment alimony” of two years. - Apparently no such court action in Egypt was undertaken by Ms. “Q”, who continued to pursue divorce proceedings in Maryland. - On enforceability of a U.S. court order for division of marital property in Egypt, the Egyptian lawyer opined: - “It is to be mentioned here that any U.S. Court judgment for a division of property between the spouses would not be enforceable in Egypt in connection with any of the husband’s property located in Egypt as such judgment would be deemed inconsistent with Egypt’s Public Policy.” - Applicant included another Egyptian attorney’s opinion asserting: - “As an absolute rule of mandatory application under Egyptian Law, there is a total patrimonial separation of assets between the two spouses, throughout the period of marriage, and a fortiori after the coming to an end of the marital relationship.” - Mr. “P” filed a declaratory court action in Egypt “. . . requesting a ruling deciding the clearance of the claimant of any financial liabilities. . . . ” That action is presently pending (per Applicant’s Additional Statement). ### Issue of notice of the Egyptian divorce - The Egyptian attorney advised: - The divorce declaration is documented in an official certificate signed by Notary, husband and two witnesses; the Notary enters the declaration into a special ledger kept for this purpose with the Court of Jurisdiction. - A copy of such declaration is formally served on the divorced wife at the address stated by the husband, at his own responsibility, in the divorce certificate. - “. . . no court proceedings did take place for consummating the divorce in question and, consequently, no need for serving notice has arisen.” - Thus, notice to the wife (“at the address stated by the husband”) occurs only after the divorce has been declared; notice in this context is not relevant to an opportunity to be heard, as no adversary legal proceedings are contemplated. - Applicant confirms that a “proof of service” is “. . . required only for notification purposes and does not affect the legality or finality of the divorce.” - There is a factual dispute between Applicant and Intervenor as to whether Ms. “Q” “. . . was served or received notice of the Egyptian proceedings.” - Applicant asserts: “Ms. [“Q”] was served in the Egyptian divorce action at her domicile in Egypt and at her abode in Maryland. Her attorney also received service of process on her behalf at her office in Maryland.” - Applicant attached documentation that the divorce certificate was delivered on August 30, 1998—more than a month after the declaration of divorce—to a neighbor of Ms. “Q” in Cairo whom Applicant contends was authorized to receive it on Ms. “Q”’s behalf. *Judgment No. 2001-2 (Mr. "P") — IMF Administrative Tribunal Reports, Vol. II* ### 98. Ms. “Q” denies that she was served in Egypt or Maryland with docu- ### Domicile, Notice, and Conflict of Laws in the Divorce of Mr. “P” and Ms. “Q” ### Notice and Service Claims - Ms. “Q” denies she was personally served in Egypt or Maryland with documents relating to an Egyptian divorce proceeding: “. . . Ms. [“Q”] was not personally served with process in the purported Egyptian action and had no notice of any proceeding, and no opportunity to be heard there.” - Ms. “Q”’s counsel denies having received “service of process of an Egyptian proceeding involving Ms. [“Q”].” - It is undisputed that Ms. “Q” and her counsel learned of the Egyptian divorce soon after through the 1998 dispute before the SRP Administration Committee and litigation pending in Maryland. ### Dispute over Domicile - Applicant contends Ms. “Q” “. . . does maintain a domicile in Cairo, Egypt, . . . . A friend and neighbor, . . . , who lives in the same building, is authorized to collect Ms. [“Q”]’s mail, pay her utilities, and look after the apartment in her absence.” - Ms. “Q”’s sworn statement in her Application for Intervention asserts: - “1. I am resident and domiciliary of the state of Maryland, and have been since August, 1989.” - “2. I do not maintain a domicile in Egypt.” - “4. To the extent that an Affidavit submitted by Mr. [“P”] sets forth that I was informed of anything at my quarters in Egypt and/or served with any documents in Egypt, his assertions are absolutely untrue.” - “6. I was not served with any documents relating to an Egyptian divorce proceeding at my abode in Maryland.” - “7. I did not appear at any divorce proceeding in Egypt.” - The issues of notice and domicile are material to the application of Maryland law. ### Conflict of Laws Rules of Egypt (Egyptian Civil Code) - Applicant maintains, and other parties do not dispute, that Egypt’s conflict of laws rules support the validity in Egypt of the Egyptian divorce. - Relevant Egyptian Civil Code provisions as set out in the source: - Art. 10—Egyptian law will rule to determine the nature of a legal relationship in order to ascertain the law applicable in the event of a conflict between various laws in any particular suit. - Art. 11—The status and the legal capacity of persons are governed by the law of the country to which they belong by reason of their nationality. - Art. 12—The fundamental conditions relating to the validity, of marriage are governed by the (national) law of each of the two spouses. - Art. 13—The effects of marriage, including its effects upon the property of the spouses, are regulated by the law of the country to which the husband belongs at the time of the conclusion of the marriage. Repudiation of marriage is governed by the law of the country to which the husband belongs at the time of repudiation, whereas divorce and separation are governed by the law of the country to which the husband belongs at the time of the commencement of the legal proceedings. - Art. 14—If, in the cases provided for in the two preceding articles one of the two spouses is an Egyptian at the time of the conclusion of the marriage, Egyptian law alone shall apply except as regards the legal capacity to marry. - Art. 15—Obligations as regards payment of alimony to relatives are governed by the (national) law of the person liable for such payment. - Applicant’s legal position under Egyptian law asserts: - (C) Article 13 subjects all effects of the marriage, including patrimonial effects and consequences of termination, to Egyptian law by nationality. - (D) Egyptian law mandates a total patrimonial separation of assets between spouses during marriage and after termination. - (E) Consequently, Ms. “Q” “could not be entitled, under Egyptian Law, to claim any rights on the sums of money allocated by the International Monetary Fund as retirement pension to [Mr. “P”].” - (F) Lack of standing to claim rights on pension payments received by Mr. “P” is the rule under Egyptian law governing the former wife’s relationship, continuing after the July 1998 divorce. - (G) A contrary Maryland decision (the “Judgement of Absolute Divorce” of February 11, 2000, by the Circuit Court of Montgomery County, Maryland) could not affect Egyptian law’s rule because the divorce already took place in July 1998 and total separation of property rights is mandatory. ### Maryland Divorce Proceedings and Property Division - The Maryland Judgment of Absolute Divorce entered by the Montgomery County Circuit Court on March 2, 2000, followed adversary proceedings initiated by Ms. “Q”’s Complaint for divorce. - Mr. “P” participated in Maryland proceedings until he left the United States in July 1998. - The Maryland divorce judgment was based on findings by a Domestic Relations Master recommending divorce on the basis of the two-year separation of the parties. - Maryland law factors considered in dividing marital property included: - contributions, monetary and non-monetary, of each party to the well-being of the family; - value of all property interests of each party; - economic circumstances of each party; - circumstances contributing to the estrangement; - duration of the marriage; - age, physical and mental condition of each party; - how and when specific marital property, including Mr. “P”’s IMF pension entitlement, was acquired. - Court-ordered relief included: - a monetary award to Ms. “Q” representing one-half of the total marital property (less the value of her personal property and one-half interest in an automobile); - a continuing share of 28% of Mr. “P”’s IMF pension entitlement (an amount representing one-half of the amount of the pension earned during the marriage); - survivor benefits under the pension attributable to the portion earned during the marriage; - judgment for pendente lite alimony payments ceased by Mr. “P” after he left the country; - attorney’s fees. ### Conflict of Laws, Divisible Divorce, and Maryland Statutes - The Maryland Court expressly considered the conflict of laws issue and held it retained jurisdiction to grant a divorce and order division of marital property because Ms. “Q” remained domiciled in Maryland and there was no exercise of personal jurisdiction over Ms. “Q” by an Egyptian court. - Family Division Master Report excerpts: - Plaintiff filed in 1997; Defendant was properly served in Maryland while both resided in Maryland; Defendant participated until July 1998 when he left the United States; Plaintiff continued domiciled in Maryland. - “Under these facts, this Court continues to have jurisdiction to grant a final divorce to the Plaintiff, with all applicable relief concerning disposition of marital property. Even had a valid final divorce been obtained by the Defendant abroad, this Court would continue to have authority to enter appropriate orders concerning disposition of marital property under Family Law Article 8-212 . . . and to resolve continuing questions of alimony under Section 11-105 . . . .” - Relevant Maryland statutory provisions quoted: - § 8-212. Exercise of powers after foreign divorce or annulment: - A Maryland court may exercise powers under this subtitle if: - (1) 1 of the parties was domiciled in this State when the foreign proceeding was commenced; and - (2) the court in the other jurisdiction lacked or did not exercise personal jurisdiction over the party domiciled in this State or jurisdiction over the property at issue. - § 11-105. Same—Following decree by another jurisdiction: - A Maryland court may award alimony if: - (1) the court in the other jurisdiction lacked or did not exercise personal jurisdiction over the party seeking alimony; and - (2) the party seeking alimony was domiciled in this State at least 1 year before the annulment or divorce was granted. - These provisions codify the doctrine of “divisible divorce,” as explained in Estin v. Estin, 334 U.S. 541 (1948), which permits recognition of a foreign decree for marital status changes while permitting the domiciliary state to retain authority over property and support matters when the domiciled spouse lacked notice or appearance in the foreign proceeding. ### Applicant’s and Intervenor’s Positions on Recognition and Public Policy - Applicant argues the Maryland Court misapplied Maryland law by failing to recognize the Egyptian divorce under principles of comity, asserting Ms. “Q”’s domicile was Egypt and that Egyptian courts had personal jurisdiction over her. - Intervenor contends Maryland law was properly applied and further asserts that, under comity principles, the Egyptian divorce would not be recognized in Maryland because it offends Maryland public policy: - Intervenor’s public policy arguments include that Ms. “Q” did not have notice of nor appear in Egyptian proceedings, and that the Egyptian divorce occurred after Mr. “P” had submitted to Maryland jurisdiction and thereafter left the United States in contempt and contrary to representations to the Court. - Applicant cites Wolff v. Wolff, 40 Md. App. 168, 389 A.2d 413 (1978), affd, 285 Md. 185, 401 A.2d 479 (1979), where an English decree “may be entitled to recognition under general principles of comity,” to support recognition arguments. ### Key Dates, Figures, and Legal Findings - Ms. “Q” domiciled in Maryland since August, 1989 (sworn statement). - Parties’ dispute and SRP Administration Committee matter occurred in 1998. - Egyptian divorce alleged to have occurred in July 1998. - Maryland divorce proceedings filed by Ms. “Q” in 1997. - Mr. “P” left the United States in July 1998. - Montgomery County Circuit Court Judgment of Absolute Divorce entered March 2, 2000. - Maryland “Judgement of Absolute Divorce” referenced as rendered on February 11, 2000 by the Circuit Court of Montgomery County in one passage. - Court-ordered continuing pension share to Ms. “Q”: 28%. - Monetary award representing one-half of total marital property (less specified deductions). - Alimony statute requires domiciliary presence in State at least 1 year before foreign annulment/divorce for certain relief. *Source: Judgment No. 2001-2 (Mr. "P" (No. 2)), IMF Administrative Tribunal Reports, Vol. II* ### 117. The Maryland Court, however, in Wolff qualified its ruling as ### Judgment No. 2001-2 (Mr. "P" (No. 2)) — Tribunal authority and SRP Section 11.3 ### Wolff case and recognition of foreign divorce - Maryland Court in Wolff qualified recognition of foreign divorce decrees: “A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought, or where the foreign court lacked jurisdiction.” Wolff, 389 A.2d at 418-19. - Wolff did not involve an issue of competing divorce decrees and the Maryland Court’s exercise of jurisdiction supported the award of marital support. - Maryland public policy favoring enforcement of support orders was cited: “. . . ‘when a court of competent jurisdiction over the subject-matter and the parties decrees a divorce, and alimony to the wife as its incident, and is unable of itself to enforce the decree summarily upon the husband,. . . courts of equity will interfere to prevent the decree from being defeated by fraud.’” Wolff, 389 A.2d at 419–20 (quoting Barber v. Barber, 62 U.S. 582, 690–91 (1858)). - The court emphasized that alimony is viewed as a duty resting upon sound public policy: “The fact that Maryland considers the obligation to pay alimony a duty, resting upon sound public policy, and not merely a debt collectible in an action at law, supports, we think, our holding that equity courts have jurisdiction to enforce the alimony provisions of foreign country decrees when such decrees are subject to recognition in this State.” Wolff, 389 A.2d at 421. - Conclusion drawn: Wolff has little applicability in support of Applicant’s claim that the Maryland Court misapplied Maryland law. ### The Tribunal’s subject-matter jurisdiction - Jurisdiction is conferred exclusively by the Tribunal’s Statute: “The Tribunal shall not have any powers beyond those conferred under this Statute.” (Statute, Article III (first sentence).) - Article II prescribes competence: - The Tribunal is competent to pass judgment upon any application: - 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. - Definitions for purposes of the Statute include: - a. “administrative act” means any individual or regulatory decision taken in the administration of the staff of the Fund; - b. “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. - The Tribunal’s authority to resolve whether the Maryland Judgment should be given effect under SRP Section 11.3 depends on finding error in the Administration Committee’s decision or invalidity of the regulations themselves. ### The Tribunal’s remedial authority - Article XIV sets remedial powers: - Section 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. - Section 2: When prescribing measures other than payment of money, the Tribunal shall fix an amount of compensation payable if the Managing Director decides not to implement such measures; the amount shall not exceed the equivalent of three hundred percent (300%) of the current or last annual salary from the Fund, except in exceptional cases with specific reasons. - Section 3: If an application challenging the legality of a regulatory decision is well-founded, the Tribunal shall annul such decision; any individual decision based on it shall be null and void. - Section 4: The Tribunal may order that reasonable costs incurred by the applicant, including counsel fees, be totally or partially borne by the Fund. - Section 5: When required procedures have not been observed, the Tribunal may, at the Managing Director’s request, adjourn proceedings for adoption of corrective measures within a time certain. - Article XIV, Section 1 authorizes all measures required to correct effects of an erroneous decision. ### Law to be applied by the Tribunal - Article III (second sentence) requires application of: “the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.” - The IMF Articles of Agreement are among the governing sources of the Fund’s internal law; the Commentary on the Tribunal’s Statute refers to formal and unwritten sources. - The Commentary and Statute emphasize the primacy of the Articles of Agreement; the Tribunal must ensure regulatory or individual decisions are consistent with the Articles. ### Character of the contested administrative act - The contested administrative act is the SRP Administration Committee’s decision to place in escrow the disputed portion of Mr. “P”’s pension entitlement. - Applicant also challenges the legality of the underlying pension regulations (the “regulatory decision”), specifically SRP Section 11.3. - Applicant argues that rights claimed by Ms. “Q” under the Maryland judgment are “legal claims which will have to be resolved by the courts,” and that any remedy must be under an express waiver of IMF immunity. - The Fund asserts SRP Section 11.3 and the Administration Committee Rules give effect to local court orders “voluntarily” and “without waiving [the Fund’s] privileges and immunities.” (Staff Bulletin No. 99/11, pp. 1, 2.) ### Articles of Agreement and immunity - Article IX, Section 3 provides: “Section 3. Immunity from judicial process The Fund, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.” - Applicant contends SRP Section 11.3 and Rules may violate Article IX, Section 3 by giving effect to court orders without an express waiver of immunity; Applicant does not elaborate, and the Fund has not expressly addressed this before the Tribunal. - The Fund’s practice: SRP Section 11.3 and Rules do not subject the Fund to court jurisdiction nor automatically comply with court orders; they create an internal policy to give effect, case by case, to particular court orders after internal procedures and Administration Committee decision, subject to appeal to the Administrative Tribunal. - The Tribunal concludes the regulatory decision does not violate the Articles of Agreement, given the Executive Board’s authoritative interpretation and the internal procedures preserving immunities. ### Legality of the individual decision (application of SRP Section 11.3 and Rules) - Core legal question: Did the Administration Committee properly apply SRP Section 11.3 and the Rules in the circumstances? - Respondent frames challenge as limited to whether a bona fide dispute exists to justify escrow withholding and whether the Committee improperly determined that a bona fide dispute existed. - Applicant and Intervenor seek a merits decision on whether the Maryland Judgment should be given effect under SRP Section 11.3. - Applicant raises additional challenges: - Contends SRP Section 11.3 is applicable only to support orders and not to division of marital property. - Challenges decision to hold funds in escrow when there is claimed to be no foreseeable resolution of the dispute between the parties (characterized by Respondent as a challenge to the regulatory decision). ### Does SRP Section 11.3 apply to division of marital property? - SRP Section 11.3 applies broadly to a “legal obligation arising from a marital relationship.” (SRP Section 11.3.) - SRP Section 11.3 text specifies benefit limits and expressly references division of marital property: - “The benefit payable to the spouse or former spouse shall not exceed: (1) 50 percent of the portion of the participant’s or retired participant’s benefit that is attributable to his eligible service during the couple’s marriage whenever the obligation or obligations to which the court order or decree relates are for support of the spouse or former spouse or division of marital property or both, and (2) 66 2/3 percent of the benefit payable to the participant or retired participant whenever the obligation or obligations to which the court order or decree relates includes child support, provided, however, that the amounts payable as support of the spouse and division of marital property remain subject to the limits under (1), above, and any increase that exceeds those limits must be directly related to the amount of the child support portion of such court order or decree.” (SRP Section 11.3.) (Emphasis supplied.) - A similar reference appears in Rule 3 of the Rules of the Administration Committee under Section 11.3. - Tribunal conclusion: Applicant’s contention that SRP Section 11.3 applies only to support orders is without merit. ### Withholding pension when no foreseeable resolution exists - Applicant argues Rule 1(b) requires a foreseeable conclusion to the controversy, and that no foreseeable conclusion exists in this case; therefore Rule 1(b) is inapplicable. - The Fund treats this as challenging both the individual decision and the regulatory decision. - The record indicates no pending court proceedings that would resolve the finality or validity of the Maryland Judgment. - The only foreseeable resolutions identified are: - A negotiated settlement between the parties; or - A decision on the merits by the Administrative Tribunal. *IMF Administrative Tribunal Judgment No. 2001-2 (Mr. "P" (No. 2)) — International Monetary Fund* ### 140. The Fund defends the legality of the Rules, and the underlying pro- ### imfat-2 - 140. The Fund defends the legality of the Rules, and the underlying pro- ### Fund’s defense of SRP Section 11.3 and the Administration Committee Rules - The Fund argues the Rules and SRP Section 11.3 “. . . place[ ] the onus on the parties to resolve what are essentially private, domestic disputes . . .” in circumstances where there are no universally accepted principles for resolving conflicts of law and jurisdiction. - The Fund’s rationale: - The Rules create an incentive for the parties to resolve the dispute between themselves while maintaining the Fund’s neutrality vis-à-vis differing legal systems. - Quoted rationale: “Contrary to Applicant’s assertion, the Rule does admit of a foreseeable conclusion. However, that conclusion is one which must be agreed upon or pursued by the parties themselves, or resolved in the courts, without the intervention of the Fund as employer. Although it is understood that these matters may be difficult to resolve, the Rules are premised on the expectation that the financial interests of both parties in the disputed payments would provide sufficient motivation for them to reach agreement or compromise.” - To give preference to either Maryland or Egyptian law “would be inconsistent with the Fund’s general principle of uniformity of treatment of its members.” - Withholding the disputed portion pending resolution maintains Fund neutrality, preserves the status quo, and avoids making payments that might later be deemed inappropriate. ### Administration Committee authority and Tribunal review - Staff Retirement Plan, Section 7.2(b) vests the Administration Committee with primary authority: - The Committee has the exclusive right to interpret the Plan; to determine whether any person is or was a staff member, participant, or retired participant; to direct disbursements; to determine whether any person has a right to any benefit and, if so, the amount; and to determine any question arising in connection with administration of the Plan. - The Committee’s decisions are “conclusive and binding upon all persons interested, subject to appeal in accordance with the procedures of the Administrative Tribunal.” - Tribunal statute places review of such decisions within its jurisdiction ratione materiæ. - Article II 1(b) provides competence to pass judgment on applications by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant. ### Central legal question: existence of a “bona fide dispute” under Rule 1(c) - Rule 1(c) (quoted verbatim): - “(c) The Administration Committee will not (i) interpret agreements between spouses or former spouses, directions or accepted requests to pay or orders or decrees of courts in cases of ambiguity, or (ii) resolve questions where there is a bona fide dispute about the efficacy, finality or meaning of an order or decree. In these cases, activation of the direction or accepted request and any associated payment may be suspended until such ambiguity or dispute shall have been settled in the judgment of the Administration Committee.” - Rule 2 directs that, in case of an objection to giving effect to a court order or decree, the Committee will assess adequacy of the order against four factors (A)–(D): - (A) is valid by reason that: - (1) a reasonable method of notification has been employed and a reasonable opportunity to be heard has been afforded to the persons affected; and - (2) the judgment has been rendered by a court of competent jurisdiction rendition [sic] and in accordance with such requirements of the state of as are necessary for the valid exercise of power by the court; - (B) is the product of fair proceedings; - (C) is final and binding on the parties; and - (D) does not conflict and is not inconsistent with any other valid court order or decree. - Application of Rule 2 to the case: - Notification and opportunity to be heard (A)(1) were not contested for the Maryland Court. - The central dispute concerns (A)(2): whether the Maryland Judgment was rendered by a “court of competent jurisdiction.” - Factor (B): fairness of Maryland proceedings was not contested; the issue is jurisdiction. - Factor (C): finality supported by absence of appeal and averments that no related litigation is pending; binding nature again tied to jurisdiction question. - Factor (D): relevance uncertain—Egyptian divorce may prima facie conflict, but the Egyptian instrument is not in terms a court order or decree and contains no disposition of marital property. ### Tribunal’s assessment of jurisdictional limits and applicable law - The Tribunal lacks competence to pass upon the validity of municipal law as interpreted by Maryland or Egyptian legal authorities; determination of correctness under Maryland law is for Maryland courts. - Given no appeal has been taken, the Tribunal treats the Circuit Court decision as the prevailing statement of Maryland law under the case circumstances; similarly for the Egyptian divorce under Egyptian law. - The Tribunal takes as its starting point, supported by the record: - The Maryland Judgment of Absolute Divorce is valid under Maryland law. - The Egyptian divorce as recorded by a religious notary and registered with Egyptian civil authorities is valid under Egyptian law. ### Policy context, principles, and weighing of factors - Commentary (quoted) highlights lack of a generally valid international solution for conflicting family law determinations and notes administrative practice of accepting formal legal documents issued by competent national authorities unless their validity is denied by courts of the staff member’s nationality or domicile. - The Fund’s internal law: - Favors legal decisions resulting from adversary proceedings with notice and opportunity to be heard; such proceedings receive a presumption of validity under Rule 2. - As articulated in Executive Board commentary, general principles such as the right to be heard (audi alteram partem) are regarded as generally applicable to decisions by international organizations. - Tribunal jurisprudence applies notice and hearing as essential principles of international administrative law. - Case-specific factual factors weighed by the Tribunal: - Until July 1998 Mr. “P” had submitted to Maryland jurisdiction, then left for Egypt and obtained an Egyptian divorce while repudiating Maryland jurisdiction. - SRP Section 11.3 and the Administration Committee Rules were designed to apply to retired participants who have moved outside the jurisdiction of the court issuing the applicable order. - The Egyptian divorce contains no provisions governing disposition of marital assets; the Maryland Judgment expressly addresses division of marital property in clear and specific terms. - The Maryland Court held that even if a valid final divorce had been obtained in Egypt, the Maryland Court would continue to have authority to issue orders concerning disposition of marital property under Maryland law for the welfare of a domiciliary of Maryland. - The Maryland Judgment conformed to enforceability criteria set out in Rule 2 of the Administration Committee Rules under SRP Section 11.3. ### Tribunal conclusions and remedy - The Tribunal concluded that: - The Administration Committee’s decision that a “bona fide dispute” existed and to maintain the disputed pension portion in escrow was understandable but was in error and must be rescinded. - The Intervenor’s request should have been given effect under the Staff Retirement Plan by the Administration Committee. - The Tribunal’s decision responds to the Fund’s internal law (the public policy of its forum), not to enforcement of Maryland or Egyptian law by the Tribunal. - Costs: - Article XIV, Section 4 permits discretionary award of reasonable costs where an application is well-founded. - The Tribunal rules that the Applicant, the Fund and the Intervenor shall bear their own legal costs. - Formal decision (FOR THESE REASONS): - The Administration Committee’s decision placing the disputed portion of the Applicant’s pension in escrow is rescinded. - The Respondent is directed to pay to the Intervenor the amount now held in escrow, including interest. - In future, the Respondent is directed to pay to the Intervenor the proportion (28%) of the pension of the Applicant as requested by the Intervenor. - Judgment signed by Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Registrar Celia Goldman. - Washington, D.C. November 20, 2001. *IMF Administrative Tribunal Judgment No. 2001-2 (Mr. “P” (No. 2)), Washington, D.C., November 20, 2001.* ### Introduction ### Introduction — IMF Administrative Tribunal Judgment No. 2002-1 (Mr. "R") ### Overview - The Administrative Tribunal of the International Monetary Fund met on March 4 and 5, 2002, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to adjudge the case brought against the International Monetary Fund by Mr. “R”, a staff member of the Fund. - Applicant challenges as discriminatory Fund management’s application of differing benefits policies to two categories of staff posted abroad: overseas Office Directors and Resident Representatives, in the specific circumstance where both serve in the same foreign city. - Mr. “R” is Director of the Joint Africa Institute (JAI) located in Abidjan, Côte d’Ivoire, the only locality to which an overseas Office Director and a Resident Representative are both assigned by the Fund. - Mr. “R” contests the October 2, 2000 decision of Fund management which denied his requests, on an exceptional basis, for: - payment of an overseas assignment allowance; and - an increased housing allowance commensurate with that afforded to the Resident Representative. - Mr. “R” seeks as relief the award of these benefits retroactive to his appointment as Director of the JAI. ### Procedure - On June 25, 2001, Mr. “R” filed an Application with the Administrative Tribunal. The Application was transmitted to Respondent on June 26, 2001. - On June 29, 2001, pursuant to Rule XIV, para. 4 of the Rules of Procedure, the Registrar issued a Summary of the Application within the Fund. - Respondent filed its Answer on August 10, 2001. Applicant submitted his Reply on September 7, 2001. The Fund’s Rejoinder was filed on October 15, 2001. - The Tribunal decided that oral proceedings would not be held because they were not necessary for disposition of the case. - The Tribunal took notice of a memorandum sent by Applicant on October 5, 2001, notifying the Fund of information allegedly learned after filing of his Reply; the memorandum is the subject of comment in the Fund’s Rejoinder but was not formally made part of the record. ### Factual background - Mr. “R” has been a staff member of the Fund since 1981 and was serving as a Fund Senior Resident Representative in Dakar, Senegal when on July 19, 1999 he was appointed Director of the JAI. - The JAI is a joint undertaking of the IMF, World Bank and African Development Bank. The Director of the JAI is to rotate among these organizations every three years, with each organization responsible for the compensation and benefits of its respective appointee. Mr. “R” is the first Director of the JAI. - On July 16, 1999, a Deputy Managing Director informed Mr. “R” of his impending appointment and reportedly told him he: - “. . . should receive the same benefits as the resident representative posted in Abidjan did, because of (i) [Mr. “R”]’s current position as a Senior Resident Representative in Dakar, Senegal (1997–1999), (ii) the fact that the office director post in Abidjan was the first such post established by the IMF in a developing country, and, above all, (iii) the parallel presence in Abidjan of a Fund resident representative.” - On July 19, 1999, Mr. “R” emailed the Staff Benefits Division requesting to “keep receiving the benefits attached to the Resident Representative position.” - On August 13, 1999, the Director of Human Resources sought approval, on an exceptional basis, to pay a housing allowance to Mr. “R” outside the approved housing allowance for staff assigned to overseas Offices, noting Resident Representative benefits are “substantially more generous” and that the hardship allowance was at that time applicable only to the Resident Representative program. - The Director of Human Resources noted that of the locations with overseas Offices, only Abidjan met the qualifications for a hardship location. - On August 20, 1999, Mr. “R” warned that the limitations of the overseas offices benefits package might make it “very difficult or even impossible” for him to take up his job and cited the former Deputy Managing Director’s statement as justifying his expectations. - On August 24, 1999, Human Resources informed Mr. “R” that a general review of benefits for overseas staff was under way and, pending its outcome, a hardship allowance applicable for the resident representatives in Abidjan would be granted to Mr. “R” on a provisional and exceptional basis. The communication stated in part: - “It has been decided that the policy on allowances for overseas offices will be reviewed in the context of the review currently being undertaken of resident representative allowances. The review of allowances for overseas offices will focus on the needs arising from overseas offices now being created also in developing countries. Particular issues to be reviewed include the housing allowance, security arrangements, and the payment of hardship allowances. This review is expected to be completed in about two months. - Pending the outcome of this review you will receive the hardship allowance applicable for the resident representatives in Abidjan. This requires an exception to the policy on allowances for directors of overseas offices (which [the First Deputy Managing Director] approved). - In the event the review results in a net increase in financial and housing allowances for overseas offices, you will receive any adjustment retroactively to the date you take up your appointment in Abidjan. ([The First Deputy Managing Director] approved this in consultation with the Managing Director). In the case of housing, this would not exceed the actual amount of your housing costs for the period covered by the retroactivity.” - Mr. “R” took up his duties as JAI Director on September 20, 1999. - The Fund’s Human Resources Department completed an extensive review of benefits applicable to the Resident Representative program and compared them with benefits for overseas Offices. Its review observed: - “. . . with the establishment of the Joint Africa Institute in Côte d’Ivoire in 1999, for the first time in its history the Fund is operating both an overseas office and a resident representative post in the same country. In itself, this does not in any way alter the intrinsic differences that continue to exist between the two operations and the job descriptions of the staff involved. Nevertheless, the co-existence of an overseas office and a resident representative post in the same country does raise the question of equity and parity of treatment. - At the very least, equity considerations would suggest that all hardship-related benefits provided to resident representatives should also be extended to staff of overseas offices located in the same countries. . . .” - Accordingly, on September 2, 2000, Fund management approved application of the hardship allowance to overseas Offices on the same basis as for Resident Representatives. - On October 2, 2000, the Chief of the Staff Benefits Division communicated the First Deputy Managing Director’s decision to Mr. “R”: - The provisional hardship allowance was made permanent and retroactive to his appointment as JAI Director, consistent with the change in policy; but - Mr. “R”’s two other requests—for an overseas assignment allowance and for an increased housing allowance—were denied. Mr. “R” challenges the denial of these two items. ### Channels of administrative review - The Staff Benefits Division advised Mr. “R” that because the decision was that of Fund management, he was not required to invoke administrative review procedures prior to contesting the decision in the Fund’s Grievance Committee. Mr. “R” submitted his Grievance on November 13, 2000. - The Grievance Committee, after a pre-hearing conference and exchange of written submissions, issued its Recommendation and Report on May 29, 2001, determining it did not have jurisdiction because, in the Committee’s view, the complaint represented a challenge to a Fund policy rather than a challenge to consistency of application in an individual case; Section 4.03 of GAO No. 31 excludes challenges to “staff regulations as approved by the Managing Director.” - By contrast, the Administrative Tribunal’s Statute empowers it to consider challenges to “regulatory decisions” of the Fund; Article II defines “administrative act” to include “any individual or regulatory decision taken in the administration of the staff of the Fund.” - On June 25, 2001, Mr. “R” filed his Application with the Administrative Tribunal. ### Summary of parties’ principal contentions - Applicant’s principal contentions (summarized): 1. Respondent’s October 2, 2000 decision upholds discriminatory treatment of an Office Director vis-à-vis a Resident Representative posted in the same city. 2. The co-posting of an overseas Office Director and a Resident Representative in the same overseas city created an exceptional circumstance requiring exceptional treatment; Applicant is entitled on an exceptional basis to the same benefits as the Resident Representative. 3. Equity concerns were recognized by Human Resources when it found that “at the very least” hardship-related benefits should be extended to overseas Office staff; these concerns have not been fully addressed through the hardship allowance. 4. The risks and disadvantages attached to expatriation to developing countries are not compensated by the hardship allowance, especially in Côte d’Ivoire where there are “serious dangers resulting from violent unrest.” 5. Although different, the role, responsibilities, and representation duties of the JAI Director are not inferior to or less risk-oriented than those of the Resident Representative in Abidjan. 6. The large financial disparity in compensation between the Office Director and Resident Representative in Abidjan cannot be justified for two professional economist staff working in the same conditions. 7. Applicant seeks as relief: - retroactive to his appointment as JAI Director, the same overseas assignment allowance as received by the Resident Representative in Abidjan; and - an increased housing allowance, retroactive to cover actual housing costs incurred, and prospectively to allow him “to live in Abidjan with the same comfort and security as the Resident Representative.” - Respondent’s principal contentions (summarized): 1. Overseas Office Directors and Resident Representatives are not alike; maintaining differing benefits does not violate the principle of equality. Reasonable distinctions may be made between staff categories without violating equality of treatment. The Fund’s benefits policy differentiates between the two categories on the basis of sound business reasons. *Source: IMF Administrative Tribunal, Judgment No. 2002-1 (Mr. "R")* ### 2. Applicant’s position is not equal to a Resident Representative in func- ### 2. Applicant’s position is not equal to a Resident Representative in functions, responsibility or standing ### Distinction between Office Directors and Resident Representatives - Applicant’s position is not equal to a Resident Representative in functions, responsibility or standing. - Different recruitment needs apply to the two positions. - Coincidence of location should not be the predominant factor in the design of Office Directors’ benefits. - The Fund gave appropriate consideration to the fact that the Director of JAI would be posted in the same city as a Resident Representative. - For the Tribunal to substitute its judgment for that of the competent organs of the Fund in formulating employee benefits policy, the Tribunal would have to find that the Fund had no legitimate reason to provide different benefits packages to Office Directors and Resident Representatives. - The Fund’s decision not to grant an exception in Applicant’s case was not an abuse of discretion. - Granting an exception for one staff member raises questions of precedent and broader applicability, tantamount to reformulation of the policy itself; management decisions about making an exception to a valid policy should be accorded a high degree of deference. - Applicant is not entitled to exceptional treatment that would create a serious inequity between himself and other Office Directors. ### Jurisdictional framing: “regulatory decision” vs “individual decision” - Article II of the Statute sets the Tribunal’s jurisdiction ratione materiæ: - The Tribunal shall be competent to pass judgment upon any application by a member of the staff challenging the legality of an administrative act adversely affecting him. - For purposes of the Statute: - 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. - The Commentary explains the definition encompasses all decisions affecting terms and conditions of employment, whether individual or regulatory; the Tribunal has jurisdiction to review regulatory decisions either directly or in the context of an individual decision based on the regulatory decision. - Respondent contends the only decision before the Tribunal is the “regulatory decision” to maintain differing benefits packages for overseas Office Directors and Resident Representatives. - Applicant asserts he does not challenge the validity of the Fund’s benefits package for Office Directors as such, but challenges the “individual decision” by management not to grant his request for an exception. - The Tribunal observes the “individual decision” (management declined Applicant’s request on October 2, 2000) and the “regulatory decision” (maintaining differing benefits) are analytically indistinguishable; the individual decision upheld the regulatory decision. - When a regulatory decision is challenged only, Article VI para. 2 provides a three-month admissibility limitation; however, 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. ### The differing benefits policies for overseas Office Directors and Resident Representatives - Fund overseas staff are categorized as those serving in overseas Offices and those serving under the Resident Representative program. - The Fund maintains seven “overseas” offices: - the four information and liaison offices (the Office in Europe (in Paris), the Office in Geneva, the Regional Office for Asia and the Pacific (in Tokyo), and the Fund’s Office at United Nations Headquarters in New York City); and - the three overseas training offices under the IMF Institute (the Joint Vienna Institute, the Singapore Training Institute, and the JAI). - Respondent states all of these Office Directors receive the same benefits package, due to similarity of responsibilities and functions. - The Fund deploys 88 Resident Representatives at different locations throughout the developing world. - Resident Representatives work closely with country authorities, providing policy review and advice, and supporting the Fund’s programs. - Resident Representatives receive a different benefits package than overseas Office Directors. - It is not disputed that Resident Representative benefits are “substantially more generous” than those afforded to overseas Office Directors. (Letter from Director of Human Resources to First Deputy Managing Director, August 13, 1999.) - Respondent’s benefits review using Abidjan as an example: “. . . it is evident that both the cash benefits and the non-cash benefits provided to the hypothetical resident representative at grade A14 are significantly greater than those provided to the hypothetical Director of the office at Grade B4.” (“Resident Representative Program: Review of Benefits and Incentives,” February 18, 2000, p. 25.) - Applicant calculates the difference in his case to equal US$114,000 per annum. Respondent has not contested this calculation. - Benefits in dispute in this case: the overseas assignment allowance and the housing allowance. - The overseas assignment allowance is available solely under the Resident Representative program and is calculated at 30 percent of salary (capped at the mid-point of the B-1 salary range). - For assignments beginning on or after February 15, 2001, the allowance has been reduced to 20 percent of salary. - For housing: Resident Representative receives furnished housing in the city of assignment; Office Directors receive a housing allowance that provides for the difference in housing costs between the duty station and Washington, D.C., and for the shipment of household items. ### Principle of nondiscrimination and standard of review - Article III requires the Tribunal to apply internal law of the Fund, “. . . including generally recognized principles of international administrative law concerning judicial review of administrative acts.” - Nondiscrimination imposes a substantive limit on discretionary authority in policy-making and administrative functions. - In de Merode (WBAT Decision No. 1 (1981), para. 47) the standard for legislative changes: - Changes must be based on a proper consideration of relevant facts. - They must be reasonably related to the objective which they are intended to achieve. - They must be made in good faith and not prompted by improper motives. - They must not discriminate in an unjustifiable manner between individuals or groups within the staff. - Amendments must be made in a reasonable manner seeking to avoid excessive and unnecessary harm to the staff. - Commentary on the Statute: discretionary decisions cannot be overturned unless 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. - The Tribunal must balance deference to managerial discretion (especially on technical or mission-related matters) with ensuring discretion is exercised compatibly with nondiscrimination. - The Tribunal “cannot say that the substance of a policy decision is sound or unsound. It can only say that the decision has or has not been reached by the proper processes, or that the decision either is or is not arbitrary, discriminatory or improperly motivated, or that it is one that could or could not reasonably have been taken on the basis of facts accurately gathered and properly weighed.” - Judicial bodies are generally incapable of substituting their judgments for those of authorities charged with discretion; a tribunal may decide whether a discretionary act was lawful but must respect the mandate to formulate employment policies appropriate to the needs and purposes of the organization. ### Case-law on discrimination and application to present case - Two ways alleged discrimination arises: - A classification expressly differentiates between groups of staff members. - A neutral policy results in consequential differentiation between groups. - Example: de Merode where a neutral tax reimbursement change disproportionately impacted U.S. nationals; upheld because objective was nondiscriminatory. - Example: D’Aoust (IMFAT Judgment No. 1996-1): the Fund’s practice truncating credit for prior experience at ten years for non-economists but not for economists was upheld because economics is at the heart of the Fund’s mission; distinction had a reasonable basis grounded in the Fund’s mission. - The Tribunal’s task in Mr. “R”’s case is to resolve the tension between deference to administrative discretion and ensuring nondiscrimination in the exercise of that discretion. *IMF Administrative Tribunal Judgment No. 2002-1 (MR. "R")* ### 38. The conclusion reached by the IMFAT in D’Aoust, that there was a ### imfat-2 - 38 ### Standards applied by international administrative tribunals on discriminatory treatment - World Bank Administrative Tribunal standard: a classification withstands an inequality challenge only if there is a “. . . rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” (Maurice C. Mould v. International Bank for Reconstruction and Development, WBAT Decision No. 210 (1999), para. 26.) - ILOAT formulation: “. . . for there to be a breach of equal treatment there must be different treatment of staff members who are in the same position in fact and in law.” (In re Vollering, ILOAT Judgment No. 1194 (1992), para. 2.) The difference in circumstance must be one that the decision‑maker “is free to take into account.” (Id.) - De Armas (AsDBAT Decision No. 39 (1998)) standard for expatriate benefits: expatriate benefits must be both “reasonably related” to and “proportionate” to the disadvantages of expatriation (De Armas, paras. 33–34). This subjects such distinctions to a relatively high degree of scrutiny. ### Key jurisprudential findings from precedent cases (verbatim emphases preserved) - Mould (WBAT Decision No. 210 (1999), para. 26): differential treatment is not necessarily discriminatory where a rational nexus exists; the SRP’s classification aimed “to provide for the needs of persons who remain married to and dependent on the former staff member at the time of his death” and “the SRP does not treat differently beneficiaries who are in the same circumstances.” - Vollering (ILOAT Judgment No. 1194 (1992), para. 2): equal treatment means “like facts require like treatment in law and different facts allow of different treatment,” and the Tribunal found German staff “were therefore not in the same position of fact as staff of other nationalities.” - Tarrab (ILOAT Judgment No. 498 (1982), para. C and para. 1): the benefits scheme distinguished locally and non‑locally recruited staff; for G officials “the criterion is the best prevailing local rates,” and for P category officials “the criterion is the level of remuneration in the best paid national civil service”; the ILOAT accepted recruitment incentive as lawful justification. - De Armas (AsDBAT Decision No. 39 (1998), paras. 85, 87–88, 92): - Force majeure protection (insurance program provided only to expatriates) was examined against the Bank’s asserted distinctions of “risk of loss and damage, and the capacity to recover such loss and damage.” The Tribunal concluded that “all professional staff must be considered to be similarly circumstanced, and force majeure protection should have been afforded to local staff as well.” (paras. 87–88.) - Severance pay distinction (one‑third reduction when remaining in duty station) was upheld where the Tribunal held severance pay “is not a reward for service, but a payment towards the expenses of re‑settlement” and that “it is not discriminatory to grant a smaller allowance to the latter.” (para. 92.) ### Principles extracted for application to the present IMF case - The Respondent’s proffered reasons for distinguishing benefits between overseas Office Directors and Resident Representatives (overseas assignment allowance and housing allowance) must be supported by evidence; the Tribunal may ask whether the decision “. . . could . . . have been taken on the basis of facts accurately gathered and properly weighed.” (Lindsey, para.12.) - The Tribunal must find a “. . . rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” (Mould, para. 26.) - If the Tribunal applies De Armas’ standard, it will assess whether the difference in benefits is not only reasonably related but proportionate to greater disadvantages faced by Resident Representatives than Office Directors, or whether the disparity is justified by some other valid distinction. ### Respondent’s asserted rationales for differential benefits (verbatim where provided) - Overseas assignment allowance rationale: - “The overseas assignment allowance for Resident Representatives, which is considered essential to recruitment of qualified candidates, compensates the Resident Representative for the pressures that are inherent to the position, given the importance of their responsibilities to the core mission of the Fund, their close working relationship with high government officials, the highly sensitive nature of their tasks and the security risks associated with their high profile.” - Housing entitlement rationale (verbatim with emphasis preserved): - “With regard to the provision of housing, Office Directors receive a housing allowance to compensate for the difference between the cost of housing in Washington and their duty station. They choose their own housing and receive a full shipment allowance to move their household goods to the duty station or store them in Washington as they choose. In contrast, Resident Representatives have a limited entitlement to ship personal effects to the duty station. Resident Representatives receive furnished housing selected by the Fund, at no cost to themselves except that they must meet the first $2,400 of maintenance expenses annually. The Fund has considered the option of paying Resident Representatives a housing allowance, in lieu of Fund‑provided housing. However, it has been determined that the existing housing benefit is justified because of the need for Resident Representatives to entertain officials of the government and the international community in the residence, the difficulty of recruiting qualified candidates, and the enhanced security necessitated by the Resident Representatives’ high profile, which requires that the Fund select and outfit their housing.” - Respondent’s overall conclusion (verbatim): - “Both the overseas assignment allowance and the housing benefit for Resident Representatives reflect the real and substantial differences in the responsibilities and functions of Resident Representatives, in comparison to Office Directors. Resident Representatives perform a range of functions—analytical country work, technical assistance and policy advice to the authorities of the country of assignment, close liaison with headquarters on a daily basis in relation to operational work, and diplomatic and representational activities—that simply do not figure in the terms of reference of Office Directors. A Resident Representative bears much responsibility for the success or failure of the Fund program in a country, giving him or her a greater profile and standing within the country and the Fund, as compared to Office Directors. Naturally, the Fund’s benefits packages for Resident Representatives and Office Directors will reflect these real and substantial differences.” ### Human Resources Department contrast of program objectives (verbatim) - “In comparing these benefits, it is important to distinguish between the different objectives and philosophy underlying the RR program and overseas offices. It should be stressed that resident representatives perform a range of functions—analytical country work, technical assistance and policy advice to the authorities of the country of assignment, close liaison with headquarters on a daily basis in relation to operational work, and diplomatic and representational activities—that simply do not figure in the terms of reference of most staff in overseas offices. Overseas office staff have minimal contact with country authorities and officials at the highest levels or with senior officials of the international economic and financial community, both from international organizations and embassies representing the major member countries of the Fund. In addition, staff in overseas offices generally have little direct involvement in the work of negotiating or surveillance‑related missions.” - (“Resident Representative Program: Review of Benefits and Incentives,” February 18, 2000, p. 24.) ### Evidentiary tensions and factual comparisons identified by the Tribunal - The Tribunal poses whether Respondent’s reasons are (a) supported by evidence and (b) rationally related to the purposes of the overseas assignment allowance and housing allowance. - The Tribunal notes overlap in duties: the vacancy announcement for the JAI Director lists duties that include representing the JAI in dealings with third parties, maintaining contacts and coordinating with authorities in the countries served by the JAI, working closely with the Director of INS and officials of the AfDB and WBI, delivering lectures as needed, and travel to countries in the region—functions that echo some representational and liaison activities the Fund attributes to Resident Representatives. *IMF Administrative Tribunal Reports, Judgment No. 2002-1 (MR. "R")* ### 55. Indeed, that overseas Office Directors have representational respon- ### imfat-2 - 55. Indeed, that overseas Office Directors have representational respon- ### Representational responsibilities and benefits differentiation - The Fund’s benefits policy provides “enhanced” benefits to overseas Office Directors vis-à-vis other overseas Office staff: “. . . the Director, will be eligible to receive enhanced benefits in terms of shipment and housing allowance. The housing allowance will be paid at the family rate in all cases. The shipping entitlement will be based on a family size consisting of a spouse and three children over the age of four, regardless of whether the staff member is single, or has fewer dependents.” (Fund’s Intranet, “Benefits and Allowances for Staff Transferring to Overseas Offices.”) - Memorandum of September 1, 1998 from the Human Resources Department: “A single director should receive the higher housing allowance and be permitted to receive a larger shipping entitlement, equivalent to that of a married staff member, to help meet the representation requirements of the position.” (Emphasis supplied.) - Distinction in standing and representational responsibilities: - Resident Representative: post akin to that of an ambassador accredited to the government of the host state; representational responsibilities are broad and constant, particularly vis-à-vis agencies of the host government. - Overseas Office Directors: representational responsibilities—especially Directors of the IMF Institutes—will be less prominent. - Security concerns: serious security risks in Côte d’Ivoire affect any staff posted there, including both Resident Representatives and Office Directors. ### Recruitment challenges for the Resident Representative program and rationale for enhanced benefits - Recruitment challenges attributed to: - The number of positions that must be filled (and re-filled every 2–3 years). - Perception among some staff that an assignment as a Resident Representative is less desirable than a position at headquarters. - Perceived undesirability attributed to: 1. Relatively difficult living conditions associated with many Resident Representative locations. 2. Perception (disputed by the Fund) that a Resident Representative assignment may have an adverse effect on career advancement. - Fund’s responses: - Increased employment benefits beginning in 1993. - Directly addressing staff concerns regarding career advancement (see Staff Bulletin No. 94/7). - Objective of the overseas assignment allowance (Fund’s Intranet, “Benefits and Allowances for Resident Representatives.”): “To provide a financial incentive to accepting a field assignment, and to compensate the staff member for unidentified financial and individual costs.” - Fund study (“Resident Representative Program: Review of Benefits and Incentives,” February 18, 2000, pp. 24−25) rationale: Resident Representative posts often in developing countries where living conditions, medical facilities, and security levels may be substandard; Fund has “traditionally provided [a] more generous benefits package to resident representatives, both as compensation for working in generally less comfortable surroundings and as a way of providing adequate incentives to attract well-qualified staff to consider undertaking these critical assignments.” (Emphasis supplied.) - Note that the policy relies on generalizations about conditions in locations where “many” Resident Representatives serve versus “most” overseas Office staff locations. ### Policy review, exception request, and administrative decision-making - Fund studied and rejected the view that exceptional circumstances would justify amending policy to create complete parity of benefits between overseas Office Directors and Resident Representatives. - Tribunal reference: De Merode (World Bank Administrative Tribunal) – the care with which a reform has been studied and conditions attached to a change are to be taken into account. - Two issues for determination in the case: 1. Whether Respondent abused its discretion by maintaining differing benefits policies for overseas Office Directors and Resident Representatives with respect to: - a) overseas assignment allowance, and - b) housing allowance. 2. Assuming no abuse of discretion in maintaining differing policies, whether Respondent abused its discretion in declining to grant Applicant an exception to those policies with respect to: - a) overseas assignment allowance, and - b) housing allowance. - Applicant withdrew challenge to regulation providing for differing benefits; confined complaint to the refusal to grant an exception justified by his “unique” situation: only he and the Resident Representative among all senior Fund officials were both economists, stationed in the same overseas city, subject to the same hazards and difficulties, and charged with senior managerial and representational functions. - Applicant moved from Senior Resident Representative in Senegal to Director of the JAI in Abidjan after assurances that Office Director benefits would be reviewed; he was partially granted the hardship allowance but not the housing allowance and the overseas assignment allowance. - Tribunal findings: - Applicant’s expectations were natural and understandable. - The Fund’s decision-making process was deliberate and within managerial authority; the distinction in benefits was rational, related to objective factors, and not tainted by animus. - Allocation of differing benefits was reasonably related to purposes of the benefits, particularly the incentive to recruitment provided by the overseas assignment allowance. - Although granting an exception in this case would have been reasonable, the Fund’s decision not to grant an exception—on the ground of avoiding perquisites for one Office Director not accorded to other Office Directors—was also reasonable and within managerial discretion. ### Decision - The Administrative Tribunal of the International Monetary Fund unanimously decides that: The Application of Mr. “R” is denied. - Signatories and date: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar - Washington, D.C., March 5, 2002 *IMF Administrative Tribunal, Judgment No. 2002-1 (Mr. “R”), March 5, 2002* ### 1. In exceptional cases, the President may, on his own initiative, or at the request of ### JUDGMENT NO. 2002-2 (MS. “Y” (NO. 2)) — Procedural Orders, Requests, and DRE Findings ### Rule on Additional Written Statements and Documents - The President may, in exceptional cases, on his own initiative or at the request of either party, call upon the parties to submit additional written statements or additional documents within a period which he shall fix. - Additional documents shall be furnished in the original or in an unaltered copy and accompanied by any necessary translations. - The requirements of Rule VII, Paragraphs 4 and 8, or Rule VIII, Paragraphs 2 and 3, as the case may be, apply to any written statements and additional documents. - Written statements and additional documents shall be transmitted by the Registrar, on receipt, to the other party or parties. ### Requests for Production of Documents and Oral Proceedings — Tribunal Decisions - Applicant included nine requests for production of documents; the majority were voluntarily satisfied by Respondent; two remained outstanding: - 1) copies of the Separation Benefits Fund Reports for 1995 to the present; - 2) copies of official notices sent to Fund staff whose positions were abolished in 1994, 1995 and 1996. - Respondent opposed disclosure on grounds of relevancy and privacy of individuals. - On February 12, 2002, the President of the Administrative Tribunal, pursuant to his authority under Rule XVII, denied Applicant’s requests for production of documents on the basis that the documents sought were “clearly irrelevant to the case.” - Applicant requested oral proceedings “. . . to present her claim for relief and to finally develop a complete factual record of her claims of discrimination.” - Respondent opposed oral proceedings, contending that “. . . all of the relevant information is contained in the full record before the Tribunal.” - On February 12, 2002, the Tribunal denied Applicant’s request for oral proceedings under the condition in Rule XIII, para. 1 that they be held only if “necessary for the disposition of the case.” ### Rule XVII (Production of Documents) — Key Provisions Quoted - Rule XVII, paragraph 1: Applicant may request the Tribunal to order production of documents or other evidence before closure of pleadings; the Fund shall be given an opportunity to present its views. - Rule XVII, paragraph 2: Tribunal may reject requests if documents are clearly irrelevant, compliance would be unduly burdensome, or would infringe privacy; Tribunal may examine documents in camera for privacy assessment. - Rule XVII, paragraph 3: Tribunal may, subject to Article X, Section 1 of the Statute, order production of documents or other evidence in the possession of the Fund and may request information useful to its judgment. - Rule XVII, paragraph 4: When the Tribunal is not in session, the President shall exercise the powers set forth in this Rule. ### Record Evidence Considered by the Tribunal - The Tribunal had a transcript of oral hearings by the Fund’s Grievance Committee, where Ms. “Y”, members of the DRE review team (an outside consultant and a senior official of the Fund’s Administration Department), and an additional member of the Administration Department were heard. - The Tribunal noted: “The Tribunal is authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” ### Factual Background — Ms. “Y”’s Employment and Separation - Employment history: - Employed as an editorial clerk on July 1, 1971. - Promoted to a professional position as an editorial officer in 1983. - Promoted to grade A11 in 1987; held grade A11 in 1995 when her position—as an assistant editor—was abolished. - Post-abolition measures and timeline: - Efforts made over a six-month period to find an alternative position (GAO No. 16, Section 13.01 reference). - Assigned to a Temporary Assignment Position (TAP) initially for 10 months, later extended for an additional 4-month period through the end of February 1997. - Selection for the TAP meant Ms. “Y” remained a staff member for 21 months after the effective date of abolition of her post, in addition to the 120-day notice period and the 22.5 months of separation leave provided under GAO No. 16. - Accordingly, Applicant was “bridged” to an early retirement pension and lifetime access to the Fund’s health insurance. - Retirement became effective March 31, 1999. - Note: Respondent observes Ms. “Y” moved seven levels in her career, from a starting grade equivalent to the current A4 to A11. ### The Discrimination Review Exercise (DRE) — Purpose and Procedures - The DRE was a special, one-time review of alleged discrimination cases filed with the Director of Administration between August 28 and September 30, 1996. - The DRE was initiated to investigate and remedy, through an alternative dispute resolution mechanism, instances of past discrimination that had adversely affected careers of Fund staff. - Origin: - Resulted from the report “Discrimination in the Fund” (December 1995) by the Chairman of the Fund’s Advisory Group on Discrimination. - The report proposed a simpler ad hoc forum to settle discrimination complaints as an alternative to the Grievance Committee and Administrative Tribunal. - Managing Director memoranda: - February 9, 1996 memorandum described appointing an independent panel, perhaps with outside expert assistance, to examine cases confidentially and reach conclusions on whether perceptions of discrimination are warranted. - July 26, 1996 memorandum emphasized addressing past discrimination that may have adversely affected careers and that “the onus is on us.” - August 28, 1996 Memorandum to Staff (“Review of Individual Discrimination Cases”) set forth: - Avenues for identifying cases, including self-identification by staff. - Review coordination drawing on input from subordinates, peers, and supervisors. - Review team may meet with individual employees; aim generally to suggest prospective and constructive remedial actions including assignments, mobility, training, promotions, and salary adjustments. - The DRE is a one-time action and is not intended to replace or replicate Fund grievance procedures. - January 13, 1997 Memorandum (“Procedures for Review of Individual Discrimination Cases”) specified: - Reviews carried out by external consultants assisted by a small number of Fund staff from within and outside the Administration Department. - The team, working in pairs, would review backgrounds, meet with individuals and others familiar with circumstances, and make recommendations. - Where remedial action warranted, aim to suggest actions within existing personnel policies, including reassignments, training, promotions, and salary adjustments. - Reviews to be discrete and sensitive; feedback sessions to inform concerned employees of outcomes; reviews intended to be a beginning of a process to identify opportunities and strengthen policies to prevent future discrimination. ### Application of the DRE to Ms. “Y” - Applicant requested review under the DRE on September 30, 1996 alleging discrimination based on profession, gender and age affecting grading and culminating in abolition of her post. - Director of Administration initially informed Applicant she was not eligible to participate in the DRE as she would shortly be separating on early retirement; Applicant filed a formal grievance. - On June 27, 1997, Director of Administration reversed the initial determination and advised Applicant that a DRE review would be carried out. - Review team composition and findings: - An ad hoc review team of an outside consultant and a senior Administration Department official conducted the review. - Team met with Applicant several times. - Team concluded there was no evidence to support that grading or abolition was influenced by discrimination; thus no basis to recommend re-grading (the remedy sought). - Timeline of Applicant’s further administrative actions: - Applicant met with the team on December 19, 1997 and was informed of conclusions; was told she could request administrative review by the Director of Administration if dissatisfied. - Counsel wrote January 27, 1998 requesting administrative review. - Director of Administration replied February 10, 1998 explaining basis for conclusion and offering an opportunity to meet again with the review team; Applicant did not accept the offer. - Counsel wrote March 24, 1998 challenging the process and repeating request for administrative review. - On May 8, 1998, Director of Administration wrote advising she had carefully reviewed the investigation and fully concurred with the review team’s recommendation. - The May 8, 1998 decision of the Director of Administration is the decision contested before the Administrative Tribunal. ### Channels of Administrative Review and Tribunal Jurisdiction - The Tribunal had previously summarily dismissed an earlier Application by Ms. “Y” in Judgment No. 1998-1 for failure to exhaust Grievance Committee review as required by Article V of the Tribunal’s Statute. - The Tribunal examined the relationship between the DRE and established administrative review procedures in GAO No. 31 (Sections 6.02-6.05) which culminate in Grievance Committee review, concluding the DRE did not follow those steps and could not have done so because mandatory time periods had expired by the time the DRE was undertaken. - The Tribunal concluded the contested decision of the Director of Administration should be considered a decision “taken directly by the Director of Administration” within the meaning of Section 6.06 of GAO No. 31. - The Tribunal observed a lack of clarity in management’s communications to staff about the relationship between the ad hoc discrimination review and recourse to the Grievance Committee, which “. . . understandably may have led Applicant to conclude that exhaustion of Grievance Committee channels was not required in her case.” - The Tribunal granted the Fund’s Motion for Summary Dismissal but held: - “Given the singular circumstances of this case, 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.” - Respondent sought an interpretation under Article XVII and Rule XX of the Statute regarding the term “jurisdiction” in that provision; the Tribunal held the application for interpretation should not be admitted because the Fund had not shown the term to be “obscure or incomplete” and the proposed interpretation would impermissibly amend the Judgment (Order No. 1999-1, Interpretation of Judgment No. 1998-1 (February 26, 1999)). *Source: Judgment No. 2002-2, IMF Administrative Tribunal.* ### 29. The Tribunal later was to learn that in the month preceding the issu- ### JUDGMENT NO. 2002-2 (MS. “Y” (NO. 2)) ### Background and procedural history - In the month preceding the issuance of Judgment No. 1998-1, Applicant filed a Grievance with the Fund’s Grievance Committee challenging for the first time in that forum the May 8, 1998 decision of the Director of Administration. - Following a period of unsuccessful voluntary mediation, the Grievance was considered by the Grievance Committee on the basis of oral hearings and briefs of the parties. - The Grievance Committee issued its Recommendation and Report on April 10, 2001, concluding that Applicant had failed to show that the findings and conclusions of the discrimination review team (and their affirmation by the Director of Administration) were arbitrary, capricious or discriminatory, or were procedurally defective in a manner that substantially affected the outcome. - The Grievance Committee recommended that the Grievance be denied. The Committee’s recommendation was accepted by Fund management on April 18, 2001. - Ms. “Y” filed her Application in the Administrative Tribunal on July 6, 2001. ### Applicant’s principal contentions - Applicant’s assertions, as summarized in her Application and Reply, include: 1. During her career with the Fund, and in the abolition of her position, Applicant experienced discrimination on the basis of her gender, age and career stream (non-economist). 2. Respondent has failed to remedy discrimination that Applicant brought to the attention of the Fund for resolution in accordance with a procedure established for that purpose. 3. Applicant did not receive the type of review contemplated by the Managing Director to cure past discrimination, as the DRE team failed to conduct a thorough review of Applicant’s claims. 4. The conduct of the DRE in the case of Ms. “Y” was marked by seven major errors: - a. The DRE team failed to interview approximately two-thirds of the witnesses suggested by Ms. “Y”; - b. The DRE team disregarded most of Applicant’s suggested witnesses without any basis for determining if they had relevant evidence; - c. In reviewing Applicant’s job classification, the DRE team interviewed individuals who were “. . . not knowledgeable of her work and who may have been biased against her;” - d. In reviewing the appropriateness of Ms. “Y”’s job classification, the DRE team did not follow appropriate procedures for conducting such a review; - e. The DRE team erroneously assumed that as a retiree, Applicant would not be entitled to any relief under the DRE; - f. The DRE team found that Applicant’s career had been “mismanaged by the Fund,” but determined that she was not entitled to any relief; and - g. The DRE team’s explanations for the abolition of Ms. “Y”’s position were “plainly erroneous.” 5. The DRE team failed to investigate all of the issues that Applicant had brought to its attention. 6. The DRE team was biased against conducting a full and fair review of Ms. “Y”’s claims, especially with regard to the abolition of her position, because the Director of Administration initially had determined that Applicant’s case was not appropriate for review under the DRE, as Ms. “Y” soon would be separating from the Fund. 7. Applicant’s career parallels larger patterns of discrimination in the Fund as revealed by Respondent’s own studies. Therefore, Applicant should be considered as having established a prima facie case of discrimination, and Respondent should carry the burden of establishing why its treatment of Applicant was not discriminatory. 8. Respondent’s examination of Applicant’s discrimination claims through the DRE has not been subjected to any meaningful review. 9. Applicant is entitled to a substantive review in the Administrative Tribunal of the factual merits of her actual claims of discrimination, not only a review of whether the DRE was properly conducted in her case. Applicant seeks to present evidence to the Tribunal to establish her claims of discrimination and to show that the DRE team’s examination of these claims was flawed, thereby prejudicing its outcome. 10. Applicant seeks as relief: - a. a finding by the Tribunal that Applicant’s career with the Fund was adversely affected by discrimination; - b. reinstatement; - c. retroactive promotion to grade A13, with corresponding back pay and pension adjustment; - d. compensatory damages; and - e. attorneys’ fees. ### Respondent’s principal contentions - Respondent’s arguments, as summarized in its Answer and Rejoinder, include: 1. The DRE was a valid exercise of Respondent’s discretionary authority to provide alternative means of dispute resolution. 2. The individual decision taken by the Director of Administration was correctly based on the DRE team’s findings that there was no basis to conclude that Applicant’s career had been adversely affected by discrimination. 3. The DRE team fully and fairly investigated Applicant’s claims of discrimination, and the team’s conclusions are substantiated by the information obtained in their investigation. Specifically: - a. following an examination of the duties of Ms. “Y”’s position, the Fund’s standards for job grading, interviews with Applicant’s supervisors as well as with staff in Ms. “Y”’s career stream who are employed in other parts of the Fund, the DRE team properly concluded that Applicant’s grade was consistent with the job she occupied (and that, in fact, as a result of “personal incumbency” she occupied a grade one grade higher than others in the same job employed in other area departments of the Fund); - b. the denial of a job audit in 1991 was consistent with the Fund’s policies and procedures on job classification; - c. lack of a day-to-day supervisor and of a formal position description was neither the result of discrimination, nor did it have a negative impact on the way that Ms. “Y”’s work was assessed or valued; - d. the decision to abolish the position occupied by Ms. “Y” was based on the work needs of the departments she served and was unrelated to the identity of the position incumbent; - e. based on a review of data on other job abolitions in the Fund, the DRE team found no evidence of age or gender discrimination; - f. the DRE team found no support for claims that the abolition of Applicant’s position was in any way related to sexual harassment or retaliation. 4. Contrary to Applicant’s assertion, the DRE team did not make a finding that Ms. “Y”’s career had been “mismanaged.” 5. The review of Applicant’s claims was in accord with the procedures established for the DRE and was conducted in the same manner as the review of other staff members’ complaints. 6. The review of Applicant’s case was not biased by the initial decision not to include her case in the DRE. 7. Applicant has not shown that any of the alleged procedural defects in the DRE process had any material effect on the outcome of the review of her case. 8. Applicant has had a full opportunity to present relevant evidence of discrimination but has failed to establish her claims. 9. De novo review by the Administrative Tribunal of the merits of Ms. “Y”’s underlying discrimination claims is not appropriate, as Applicant did not raise these claims in the manner and within the time limits prescribed in the Fund’s rules and regulations. The DRE did not confer new rights on staff who failed to exercise legal rights to grieve prior decisions. The only decision properly before the Tribunal for review is the decision arising out of the DRE. ### Consideration of the issues of the case — scope of the Tribunal’s review - The Tribunal must determine the scope of review: Applicant seeks de novo review of the merits of underlying discrimination claims; Respondent contends review is limited to challenges to the fairness of the DRE process because Applicant failed to raise claims timely under GAO No. 31. - The Grievance Committee limited its conclusions to holding that the decisions of the DRE team and of the Director of Administration upholding the review team’s findings were not arbitrary, capricious or discriminatory, or procedurally defective in a manner that substantially affected the outcome. - The Statute of the Administrative Tribunal limits jurisdiction ratione materiæ to challenges to the legality of an “administrative act.” “Administrative act” is defined to mean “. . . any individual or regulatory decision taken in the administration of the staff of the Fund.” - Article V requires that review by the Tribunal of challenges to the legality of an administrative act be made “. . . only after the applicant has exhausted all available channels of administrative review.” - To determine the scope of matters under review, it is necessary to identify what administrative act(s) have been the subject of prior administrative review. - In Judgment No. 1998-1, the Tribunal held that “[t]he ad hoc review of Applicant’s complaint did not go through the steps outlined in Section 6.02, 6.03, 6.04 and 6.05 of the GAO, and could not have done so, because the mandatory time periods for each of these steps had expired when the review was undertaken.” The record confirms that Ms. “Y” took no steps to contest the abolition of her position, or any other decisions she alleges were discriminatory, through the formal channels of review provided by the Fund under GAO No. 31. - The Tribunal, in summarily dismissing the earlier Application for failure to seek review in the Grievance Committee, rejected the view that the DRE opened a channel of review alternative to that provided by GAO No. 31 culminating in hearing by the Grievance Committee. The Tribunal noted that the ad hoc discrimination review procedure memoranda could “have been more explicit” but held the DRE did not confer new rights or substitute for the grievance procedure. - The only decision that could be subject to review by the Grievance Committee (and thereafter by the Administrative Tribunal) was the May 8, 1998 decision of the Director of Administration, deemed a decision “taken directly” for purposes of GAO No. 31, Section 6.06. ### Importance of timely administrative review - The Tribunal recalled the value of timely administrative review to the reliability of later adjudication: - Prompt exhaustion provides an early opportunity to rectify possible errors when memories are fresh, documents are likely to be in hand, and disputed decisions are more amenable to adjustment. - Timeliness of review is linked to the purposes of that review and limits should not be lightly dispensed with. - Time limits are “prescribed as a means of organizing judicial proceedings in a reasonable manner” and “are of a mandatory nature.” - While the Fund may create an alternative dispute resolution mechanism to remedy instances of past discrimination stretching beyond statutory bars and not previously raised through administrative review, the Administrative Tribunal remains controlled by its Statute. *IMF Administrative Tribunal Judgment No. 2002-2 (Ms. “Y” (No. 2)), IMF Administrative Tribunal Reports, Vol. II* ### 41. At the same time, since the Applicant challenges the May 8, 1998 deci- ### imfat-2 - 41. At the same time, since the Applicant challenges the May 8, 1998 deci- ### Scope of review; regulatory decision vs. individual decision - The Applicant challenges the May 8, 1998 decision of the Director of Administration upholding the DRE conclusion that the Applicant’s career was not adversely affected by discrimination; examining that decision requires consideration of whether the Applicant’s career suffered discrimination. - Respondent characterizes the DRE as a “regulatory decision” under Article II of the Statute and contends the DRE was a proper exercise of the Fund’s discretionary authority. - The Tribunal distinguishes review of the Fund’s decision to institute the DRE from de novo examination by the Tribunal of the Applicant’s underlying claims. - Article III of the Tribunal’s Statute requires application of the Fund’s internal law and “generally recognized principles of international administrative law concerning judicial review of administrative acts.” - The Commentary on the Statute indicates a narrow scope of review for regulatory decisions and a high degree of deference to Fund policy-making: “the Fund tribunal would have to respect those principles in reviewing the legality of regulatory decisions.” (Report of the Executive Board, p. 19.) ### Design, purpose, and procedural features of the DRE - The DRE was instituted to address past discrimination in the Fund (Memorandum of July 26, 1996 referenced). - The Fund’s stated goal: encourage voluntary staff participation, including those whose legal claims were time-barred or for whom relevant information was no longer available; provide relief to otherwise unremedied complaints. - Procedural choices and rationale articulated by Respondent: - Statutes of limitation were not applicable to DRE claims. - Staff were not required to meet legal evidentiary standards nor to bear the burden of proof. - Staff members were not represented by counsel because the procedure was non-adversarial and not an accusation of misconduct. - No formal record-keeping or transcription of testimony to preserve confidentiality and encourage candor. - DRE was designed to be informal and expeditious, not providing the same rights or entitlements as the Fund’s grievance procedures which are subject to strict time limits. - The DRE procedures were developed in partnership with outside consultants specializing in alternative dispute resolution; confidentiality and absence of a written record were intended to facilitate cooperation and candor. - The Tribunal found the DRE to be a good faith, possibly unprecedented, effort among international organizations to resolve lingering allegations of past discrimination. ### Implementation outcomes and factual statistics - According to the Fund, approximately 70 staff members availed themselves of DRE procedures, with half of these individuals receiving some form of relief. - The DRE was undertaken following recommendations in the study “Discrimination in the Fund” (December 1995). ### Standards for review of discretionary and regulatory acts (precedent) - de Merode, WBAT Decision No. 1 (1981) standard summarized: - A change or exercise of authority is an abuse of discretion if adopted for reasons alien to proper functioning, not based on relevant facts, not reasonably related to intended objective, not made in good faith, prompted by improper motives, discriminatory in an unjustifiable manner, or made without reasonable care to avoid excessive/unnecessary harm. - Tribunal’s Citation of standards: - Discretionary decisions may be overturned only if arbitrary, capricious, discriminatory, improperly motivated, based on error of law or fact, or carried out in violation of fair and reasonable procedures (Report of the Executive Board, p. 19). - The applicant bears the burden of proof; absent proof, it is assumed administrative authority will exercise discretion objectively and non-discriminatorily (Iona Sebastian (No. 2) v. IBRD, WBAT Decision No. 57 (1988), para. 22). - ILOAT standard: set aside decisions only for formal/procedural flaw, mistake of fact or law, overlooked essential fact, ultra vires action, misuse of authority, or obviously wrong conclusion (In re Pary (No. 4), ILOAT Judgment No. 1500 (1996), para. 5). ### Application to Ms. “Y”: procedural consistency, evidence, and bias issues - The Tribunal framed three key questions to assess whether the DRE team’s handling of Ms. “Y”’s case constituted an abuse of discretion: 1. Were the procedures applied to Ms. “Y”’s case consistent with the procedures set forth for the DRE and with those applied by the DRE teams in other cases? 2. Were the conclusions of the DRE team in Ms. “Y”’s case (and their ratification by the Director of Administration) reasonably supported by evidence? 3. Was the investigation of Ms. “Y”’s claims affected by bias? - Procedural parameters established in the Memoranda (August 28, 1996; January 13, 1997): - Each review team comprised an outside consultant and a Fund official working as a pair. - Initial meeting with the staff member to obtain background information and identify potential witnesses (subordinates, peers, supervisors). - Review of the career record, performance reports, and consideration of comparators where appropriate. - Reviews to be carried out “as discrete and sensitive a manner as possible.” - If past discrimination was found to have adversely affected a career, “forward-looking remedies” would be identified. - Feedback sessions with the staff member to inform them of review conclusions. - Testimony confirming procedural consistency: - Senior Administration Department official: procedures followed in Ms. “Y”’s case were the same as in all 70 cases; steps included reviewing submissions, meeting with the staff member, identifying and interviewing witnesses, reviewing career files and performance reports, and examining comparators for promotions and salary increases. - Outside consultant on Ms. “Y”’s review team: “[i]n this case, we followed the same format that we did in each of them. . . .” (Tr. p. 313.) ### Tribunal determinations - The Tribunal concluded implementation of the DRE was a proper exercise of the Fund’s discretionary authority. - While the Fund’s decision to adopt the DRE attracts deference, the conduct of the DRE in individual cases remains subject to review for abuse of discretion under the standards summarized above. *Attribution: IMF Administrative Tribunal, Judgment No. 2002-2 (Ms. “Y” (No. 2)), IMF Administrative Tribunal Reports, Vol. II.* ### 58. That the essential steps for DRE review, as set forth in the applicable ### 58. That the essential steps for DRE review, as set forth in the applicable Memoranda ### Procedural regularity of the DRE process - The essential steps for DRE review were taken in Applicant’s case and are corroborated by the review team’s confidential case Report, which includes the names of the persons interviewed and summarizes the content of the information gathered. - It is not disputed that an initial background meeting and later feedback sessions were held with Applicant. - The Administrative Tribunal concludes that the procedures applied to Ms. “Y”’s case were consistent with the procedures set forth for the DRE and with those applied by the DRE teams in other cases. ### Selection and scope of witness interviews - The review team interviewed “22 people, all in total,” including: - senior staff from the area departments in which Ms. “Y” had worked, including directors and senior personnel managers (SPMs); - “some ten staff members whose work Ms. [“Y”] had edited or who Ms. [“Y”] had worked for in different capacities”; - individuals in the Administration Department involved in the decision to abolish Ms. [“Y”]’s position and staff working on job grading; and - supervisors in the editorial stream from the Secretary’s Department and the External Relations Department who could interpret job grading standards and provide comparisons. - The senior Administration Department official stated that “on average, about seven to eight witnesses were interviewed per case. And . . . in Ms. [“Y”]’s case, we interviewed 22 individuals.” - The team did not interview every person suggested in all cases; instead it selected sample witnesses to represent peers, subordinates, supervisors, or experts, and some persons were not available. ### Were the DRE conclusions reasonably supported by evidence? - Legal standard applied by the Tribunal: - Conclusions must not be arbitrary or capricious but must be reasonably supported by evidence; a decision may be set aside if it “rested on an error of fact or of law, or if some essential fact was overlooked . . . or if clearly mistaken conclusions were drawn from the evidence.” - Tribunals will not substitute their judgment for that of the competent organs in matters of managerial discretion. - The DRE team’s principal findings are set out in a confidential case Report and were elucidated in Grievance Committee testimony by the review team’s two members. - Summary of the team’s conclusions and bases: - Job grading: - The DRE team examined in considerable detail the assertion that Ms. “Y”’s position should have been graded at A13 rather than A11. - After canvassing supervisory and non-supervisory staff familiar with her work, persons in the same career stream in other departments, and Administration Department personnel familiar with job grading standards, the team concluded there was no basis for the claim that the grading of Ms. “Y”’s position had been adversely affected by discrimination. - The team concluded that at A11 Ms. “Y” “was at the ceiling of the ladder for her career stream in area departments” owing to the nature of editorial work, and that she had not sought positions in other departments that might offer greater opportunity for advancement. - The team found a “clear demarcation” between A11 and A12 in the editorial stream: positions at A11 and below were limited primarily to editing internal documents, while positions at A12 and above were dominated by creation of original work, including for publication. (Tr. pp. 157–159, 162, 215–216, 229, 236, 241–242; Report, pp. 3−7.) - Abolition of position: - The review team interviewed senior staff involved in the decision to abolish Ms. “Y”’s post and concluded the abolition resulted from budgetary developments in the Fund and was not affected by discrimination. - Departments had been asked to make small reductions in overall staffing, and the pressure of economics work in the two departments served by Ms. “Y” led to the decision that “it would be preferable not to lose an economist.” - The team determined the decision reflected “. . . a functional and rational prioritization as between editorial and economic functions. This prioritization of functions also appeared to the review team to have been made independent of the position incumbents.” (Report, p. 6.) - Other claims: - The team examined all claims raised in Ms. “Y”’s initial request for DRE review and drew conclusions based on evidence gathered through interviews with persons having information germane to the allegations. - The team concluded that none of the following factors had adversely affected the grading of Ms. “Y”’s position or led to its abolition: lack of a day-to-day supervisor (Tr. pp. 154, 203, 226, 257); lack of a formal job description (Tr. pp. 155−156, 213−215); decision of Ms. “Y”’s department not to appeal the denial of a job audit (Tr. pp. 160−161, 216); alleged sexual harassment or retaliation (Tr. pp. 171−172, 324). - Regarding age discrimination, the team examined records of other separations in the same period and concluded that staff separating as a result of abolition tended to be older because the Fund had approached persons eligible for early retirement to take advantage of separation incentives; the team characterized this policy as “not a reflection of age discrimination” but as a “humanitarian and sensible approach.” (Tr. pp. 164, 260−261.) - Ratification: - The Director of Administration’s May 8, 1998 decision drew directly upon the evidence gathered by the review team and documented findings that Applicant’s job grade and the abolition of her post had not resulted from discrimination. (Letter from Director of Administration to Ms. “Y”’s Counsel, May 8, 1998.) - Tribunal conclusion on evidentiary support: - The Administrative Tribunal concludes that the conclusions of the DRE team (and their ratification by the Director of Administration) were reasonably supported by the evidence adduced in their investigation. ### Allegations and examination of bias - Applicant alleged the DRE team failed to fulfill its mandate, including that it did not investigate all allegations and was biased, especially because the Director of Administration initially determined Applicant’s case was not appropriate for DRE review. - Review team testimony: - A member of the review team testified he did not believe the Director of Administration’s initial judgment or its reversal “had any influence whatsoever” on the team; he did not know if the consultant was aware the Director had initially declined the case; and he stated there was “nothing different about the way we treated the review of Ms. [“Y”]’s case from the other 14, 15 cases that I was involved with.” (Tr. pp. 247−248.) - The team indicated relatively less emphasis was given to abolition of position than to job grading because the remedy sought under the DRE was promotion rather than reinstatement. (Tr. pp. 232; Report at p. 4.) - The Director of Administration’s May 8, 1998 decision was based squarely upon the findings of the review team. - Tribunal conclusion on bias: - The Administrative Tribunal concludes that the DRE review and the Director of Administration’s ratification were not affected by personal animus or bias that would support rescission of a discretionary administrative decision. ### Final conclusions and decision - The Administrative Tribunal holds: - First, that the proceedings of the DRE in respect of the Applicant’s claims were regular, appropriate and unexceptionable. - Second, that there is no ground for questioning the conclusion of the DRE that the Applicant’s career disposition was unaffected by discrimination. - Decision: - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Application of Ms. “Y” is denied. - Signatures and date: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - /s/ Stephen M. Schwebel, President - /s/ Celia Goldman, Registrar - Washington, D.C. March 5, 2002 *Source: Judgment No. 2002-2, Administrative Tribunal of the International Monetary Fund (March 5, 2002).* ### 5. Following an inquiry from the Fund seeking clarification as to whether ### 5. Following an inquiry from the Fund seeking clarification as to whether ### Procedural history and intervention timeline - The President of the Administrative Tribunal directed that Respondent’s Answer would remain due forty-five days from the transmittal of the Application, but the Answer would be held in the Office of the Registrar until admissibility of the Application for Intervention was resolved. - Respondent filed its Answer to Ms. “G”’s Application on August 19, 2002. - Rule XIV requires that upon transmission of an application for intervention the Applicant and the Fund are each entitled to present views on intervention within thirty days. - On September 18, 2002 the President, in consultation with other members of the Tribunal, decided to admit the Intervention of Mr. “H”. - Consistent with Rule XIV, the previously submitted pleadings on the merits (Ms. “G”’s Application and the Fund’s Answer) were transmitted to Mr. “H”. - The Applicant and the Intervenor were each given thirty days to file, simultaneously, a Reply to the Fund’s Answer. - The Intervenor submitted his Reply on October 17, 2002; the Applicant submitted her Reply on October 18, 2002; the Fund’s Rejoinder was filed on November 20, 2002. - The Tribunal decided that oral proceedings would not be held. ### Key procedural rules cited - Rule XIV (Intervention) highlights: - Any person to whom the Tribunal is open under Article II, Section 1 may, before the closure of the written pleadings, apply to intervene on the ground that he has a right which may be affected by the judgment. - The Registrar transmits a copy of the application for intervention to the Applicant and to the Fund; each may present views within thirty days. - Upon expiration of that thirty-day deadline, the President, in consultation with other members, decides whether to grant the application; if admitted, the intervenor participates as a party. - The Registrar shall issue a summary of the application for circulation within the Fund, unless the President decides otherwise. - The President’s action to modify rule application (including time limits) was taken pursuant to residual powers under Rule XXI, paras. 2 and 3. ### Factual background of Ms. “G”’s case - Employment history and status: - Ms. “G” has been continuously employed by the Fund since 1994: initially contractual, later fixed-term, and since 1999 a regular staff member. - At initial employment in 1994 she was a lawful permanent resident (“LPR”) of the United States and remains in that visa status today. - At the time of her Application to the Administrative Tribunal, Ms. “G” was 46 years of age. - Expatriate benefits policy change: - In January 2002 the Fund amended eligibility criteria for expatriate benefits to make them available to staff currently in LPR status on the condition that they relinquish LPR status in favor of G-4 visa status. - Under U.S. immigration laws, G-4 visa status is provided specifically to employees of international organizations and only for the duration of their employment; U.S. law permits G-4 holders, upon completion of at least 15 years of employment in that visa status, to convert to LPR status. - Applicant’s request and arguments: - On April 9, 2002 Ms. “G” requested an exception to the amendment so she could receive expatriate benefits without giving up LPR status, stating she sought the exception “. . . principally to rectify the discrimination created by the Amendment.” - Arguments asserted by Ms. “G” included: - The policy discriminates against her vis-à-vis staff with LPR status grandfathered under the former policy. - The policy discriminates against mid-career LPR staff vis-à-vis mid-career G-4 staff because relinquishing LPR status may prevent attainment of 15 years of G-4 employment before retirement age. - A disincentive to take overseas assignments could harm her career development because overseas service would not count toward the 15-year requirement. - The visa-status basis for expatriate benefits may not correlate with the goal of compensating additional costs of maintaining home-country contacts; “cultural proximity” or permanence in the U.S. may not be reflected by visa status. ### Administrative review channels and decisions - HRD response and rationale: - Ms. “G”’s April 9, 2002 request was denied by memorandum of April 12, 2002 stating no exceptions could be made to the policy. - On May 6, 2002 she requested administrative review; by memorandum of May 20, 2002 the Director of Human Resources affirmed the denial, stating the Executive Board had not authorized management to make exceptions and rejecting claims of discrimination. - The Director explained: - The Fund must draw a line for expatriate benefits for reasons of costs and policy objectives and concluded the reasonable line was to provide benefits to any staff member who is not a permanent resident or citizen of the duty station country, including permitting permanent residents who relinquish that status and obtain a G-4 visa to become eligible. - “All staff who are not U.S. citizens have the option to obtain G-4 visas and thereby gain eligibility for expatriate benefits.” - Difficulties in regaining LPR status after converting to G-4 stem from U.S. law, not the Fund’s policy. - Grandfathering under a pre-existing policy is a commonly recognized practice. - Subsequent filings: - Ms. “G” filed her Application with the Administrative Tribunal on July 2, 2002. - On July 16, 2002, following filing of her Application, Applicant filed a Grievance with the Fund’s Grievance Committee to preserve rights in that forum. - The Fund argued the Grievance Committee lacked jurisdiction because the complaint challenged a decision of the Fund’s Executive Board, excluded from the Committee’s jurisdiction under GAO No. 31, Rev. 3 (November 1, 1995). The Grievance Committee dismissed the Grievance on that basis. ### The Intervention of Mr. “H” - Mr. “H” filed an Application for Intervention on August 1, 2002 pursuant to Rule XIV. - Mr. “H” is a staff member at IMF Washington, D.C., a national foreign to the United States with LPR status, employed at the Fund since 1990 (contractual until 2001, then fixed-term); as of the Application he was 54 years of age and had prior employment with the World Bank. - On September 18, 2002 the President, in consultation with the Associate Judges, admitted Mr. “H”’s Application for Intervention. - Upon admission, the Intervenor participated as a party and filed his Reply on October 17, 2002. ### Legal standards for admissibility of intervention - Two statutory requirements for intervention (as noted in prior jurisprudence): - The intervenor must be within the Tribunal’s jurisdiction ratione personæ. - The intervenor must have a right that may be affected by the judgment to be given by the Tribunal. - Article X, Section 2(b) of the Statute and Rule XIV, paragraph 1 of the Rules of Procedure govern intervention and require that applications for intervention be filed before closure of written pleadings on the ground that the applicant has a right which may be affected by the Tribunal’s judgment. *IMF Administrative Tribunal Reports, Vol. II* ### 26. The views of Applicant and Respondent with respect to the admis- ### The views of Applicant and Respondent with respect to the admissibility of the Application for Intervention ### Parties’ positions on admissibility - Applicant opposed granting the Application for Intervention because she did not consider the intervention to be in her interest: - Asserted the Application for Intervention raised issues she did not wish to raise. - Argued intervention of Mr. “H” would add another layer of procedures and hence an additional burden for her as a litigant, not matched by any obvious benefits. - Did not address the statutory requirements for intervention or consider whether Mr. “H” had met these requirements. - Respondent (the Fund) did not, on balance, object to granting Mr. “H”’s Application for Intervention and proposed a discretionary test for interventions by parties with only an “indirect” interest: - Factors to weigh: - a) the timing of the application for intervention, in terms of whether a party would be prejudiced by delay or “hampered in their arguments;” - b) the “relatedness” of the intervenor’s factual and legal situation to that of the applicant and the degree to which resolution of the original claim might be complicated by the intervention; - c) the extent to which the intervenor’s situation and arguments are so similar to those of the applicant that they are “. . . simply duplicative or cumulative . . . such that no reasonable purpose is served by permitting intervention;” - d) any potential prejudice to the applicant if intervention were denied. - Applied the test to the present case and observed: - Mr. “H” submitted his Application for Intervention relatively early in the proceedings, before the Fund had filed its Answer. - Mr. “H”’s age-discrimination argument is a different expression of Ms. “G”’s theory of the case, so admission would not complicate resolution. - Two factors (duplication of claims and prejudice to the applicant if intervention denied) weighed against admission because Mr. “H”’s “only real interest in this case is as a member of the group which stands to benefit from a judgment in favor of Ms. [“G”]” and his rights are “adequately represented by Ms. [“G”].” - Concluded, on balance, Mr. “H”’s Application for Intervention should be granted in the interest of judicial economy, considering timeliness and similarity of claims. ### Tribunal’s analysis and ruling on admissibility - Tribunal findings: - Not disputed that Mr. “H”, a member of the staff of the Fund, is a person to whom the Tribunal is open under Article II, Section 1 of the Statute. - Mr. “H” has a right that may be affected by the judgment of the Tribunal; like the Applicant, Mr. “H” has LPR status and would be affected by any decision on the legality of the expatriate benefits policy. - Rejection of Respondent’s “indirect interest” discretion argument: - Respondent presented no legislative-history or jurisprudential basis for a discretion to deny intervention when the prospective intervenor is only “indirectly” affected. - The contention that Mr. “H”’s interest was only “indirect” was not persuasive; being in the class who “would benefit from a favorable outcome” supports admission rather than denial. - The standard “may be affected” is broad: the intervenor’s interests need not be determined by the judgment but merely affected by it. - The Fund’s suggestion that Mr. “H” could pursue his own application later may be unrealistic because a precedent on a regulatory decision affects future challenges on similar grounds. - Rejection of Respondent’s contention that duplicative claims justify denial: - Identity between the claims of an applicant and an intervenor is ordinarily the touchstone for admitting intervention; rejecting intervention on that ground runs counter to the purposes of intervention. - Rejection of Applicant’s burden argument: - No support for a discretion to deny intervention because it would pose additional burdens to the applicant; similarity of contentions means the applicant’s burdens should not be significantly affected. - Ruling: - Having met the statutory requirements for intervention, Mr. “H”’s Application for Intervention was granted. ### Summary of parties’ principal contentions - Applicant’s principal contentions (summarized): 1. The Fund’s expatriate benefits policy discriminates against Applicant vis-à-vis staff members in LPR status hired before 1985 who remain eligible to receive expatriate benefits pursuant to a “grandfathering” provision of the policy adopted in 1985. 2. The policy discriminates vis-à-vis staff who differ only in visa histories (same years of service but began careers in G-4 status) with respect to ability to regain LPR status in the future; if Applicant converted now to G-4 status, she would not be able to acquire 15 years of service in that status before early retirement and would face disincentives to Fund assignments overseas because such service would not qualify as part of the 15-year period. 3. Applicant’s request for exception is fully within the spirit of the Fund’s expatriate benefits policy, designed to compensate international staff for costs of maintaining and renewing cultural ties with home countries. 4. The possibility of obtaining LPR status must be considered part of the overall benefits package, although it is not directly a Fund benefit; the option allows time and flexibility for plans to return to one’s home country and is recognized by the Fund in Staff Bulletin No. 02/2. 5. Applicant is adversely affected by the timing of the new policy; had the policy been implemented earlier she could have completed 15 years in G-4 status by early retirement and would have been “much less adversely affected.” In timing situations, “grandfathering” is appropriate. 6. Staff members in LPR status face many of the same challenges as G-4 colleagues, yet G-4s with comparable rank and family status have substantially higher income due to expatriate benefits. 7. Relief sought: that she be granted full expatriate benefits as of May 1, 2002, while maintaining her LPR visa status. - Intervenor’s principal contentions (summarized): 1. Intervenor supports Ms. “G”’s contentions. 2. The Fund’s current policy represents age discrimination because it “. . . requires older staff to perform an action that deprives them of an opportunity that is available to younger staff with identical employment and national characteristics.” The 15-year period required to regain LPR status if converting to G-4 status means Intervenor cannot complete that service by retirement age despite having worked for international organizations for 25 years (including World Bank service). 3. The current policy is discriminatory because it lacks the “grandfathering” clause granted under a previous policy change to staff holding LPR status. 4. Tribunal has jurisdiction under Article XX because the January 2002 amendment, the request for exception, and the denial are post-October 15, 1992; the 2002 amendment is a new policy despite elements of 1985 and 1947 policies. 5. Uniform application of the 2002 amendment has discriminatory results for three categories: - a) staff who may now relinquish LPR status but, because of their age, will be able to complete 15 years of service before retirement so as to retain option of later regaining LPR status; - b) staff who (like Applicant), because of their age, will not be able to complete 15 years of service before reaching early retirement age; - c) staff who (like Intervenor), because of their age, will not be able to complete 15 years of service before mandatory retirement age. - Accordingly, the policy discriminates against long-serving staff and older staff. 6. LPR status should be considered a “benefit,” not administered by the Fund but “facilitated” by it. 7. Granting exceptions to those discriminated against will not interfere with the policy’s fundamental intent; HRD has authority to grant such exceptions. 8. Relief sought: preferably (a) “grandfathering” of all Fund staff holding LPR status as of the January 2002 amendment or, alternatively, (b) “grandfathering” only of those who, because of their age at the time of the amendment, would lose the option to apply for LPR status at retirement. - Respondent’s principal contentions (summarized): 1. Applicant and Intervenor do not challenge any administrative act within the Tribunal’s jurisdiction ratione materiæ under Article II, Section 1 because the terms and conditions of their employment have not been adversely affected by the 2002 amendment; that change expanded choices and, for the first time, gave opportunity to be eligible for expatriate benefits. 2. When an organization implements a change in employment conditions favorable to employees, a staff member who benefits less has no legal claim; such a staff member has not been adversely affected even if earlier enactment would have benefited them more. 3. The essence of complaints is challenge to the 1985 policy denying expatriate benefits to staff with LPR status; because that policy pre-dates the Tribunal’s Statute, these claims fall outside jurisdiction ratione temporis under Article XX. Later requests for exception to a pre-Statute policy are also outside jurisdiction. 4. Assuming jurisdiction, the Fund’s policy is a proper exercise of managerial discretion, supported by evidence and rationally related to legitimate purposes; it is not discriminatory because the visa test for eligibility is rationally connected to recruitment and retention objectives and the Fund may consider costs. 5. The Fund’s decision to “grandfather” existing staff in 1985 was legal and not discriminatory. 6. The 2002 amendment is not discriminatory as between Applicant or Intervenor and younger staff in LPR status; the Fund is not required to place all staff in the same situation regarding becoming permanent residents. The ability to attain LPR status following 15 years in G-4 status is not a Fund “benefit” but a function of U.S. law; Applicant’s emphasis conflicts with the rationale for expatriate benefits (repatriation after separation). 7. “Grandfathering” normally preserves entitlement after a benefit is abolished or made less favorable; Applicant and Intervenor have never been entitled to expatriate benefits, so there is no basis for “grandfathering.” 8. The 1985 policy and the 2002 amendment make no provision for exceptions in individual cases; any such exception would be ultra vires. ### The Fund’s policy on expatriate benefits (background and purpose) - Policy context: - IMF is mandated by its Articles of Agreement to “. . . pay due regard to the importance of recruiting personnel on as wide a geographical basis as possible.” - To recruit and retain a geographically diverse staff representative of membership, IMF offers “expatriate benefits” to compensate staff for costs of maintaining associations with home countries during employment and to facilitate repatriation thereafter. - Expatriate benefits sustain both international civil servants and the organizations by maintaining international character and outlook. - Current expatriate benefits include: - Home Leave (GAO No. 17, Rev. 9) (May 6, 1999): purpose is to enable eligible staff to “. . . spend periods of authorized leave with their families in their home countries as a means of maintaining their cultural and personal ties to those countries.” Benefit includes travel allowances, allowance toward expenses at home leave destination, insurance coverage, and travel time allowances (GAO No. 17, Rev. 9, Section 1.01). - Education Allowances (GAO No. 21, Rev. 7) (June 12, 2000): intended to assist eligible staff serving outside home countries “. . . in educating their children, either in their home countries or elsewhere, in a manner intended to facilitate their children’s eventual return to their home countries.” Associated allowances may defray tuition, boarding or subsistence, travel and certain types of tutoring (GAO No. 21, Rev. 7, Section 1.01). - Certain aspects of repatriation benefits pursuant to GAO No. 8, Rev. 6 (January 1, 1988). *JUDGMENT NO. 2002-3 (MS. “G”), IMF Administrative Tribunal Reports, Vol. II* ### 43. Over time, the Fund has enacted changes to the eligibility require- ### Over time, the Fund has enacted changes to the eligibility requirements for receiving expatriate benefits. ### Historical evolution of the eligibility criterion - From 1947 until 1985 (approximately the first forty years), the IMF granted expatriate benefits on the basis of nationality foreign to the duty station, regardless of visa status. - By the early 1980s the IMF and the World Bank concluded eligibility should be re-examined; a Joint Bank/Fund Working Group was established to study alternatives. - The Working Group assessed five allocation bases: (I) nationality; (II) international recruitment; (III) visa status prior to recruitment; (IV) length of residence in the U.S.; and (V) a combination of visa status prior to appointment and residency. - The Working Group recommended option III, visa status prior to appointment, as “. . . the most logical criterion and recognizes the different circumstances and needs of U.S. nationals and permanent residents on the one hand and expatriates in G-4 status on the other.” (Report of the Working Group on Expatriate Benefits, June 27, 1984.) ### 1985 policy change and “grandfathering” - On January 28, 1985 the IMF Executive Board replaced the nationality test with a visa-status-based policy. - Staff Bulletin No. 85/1 (February 1, 1985) stated: “. . . all staff members stationed at headquarters who have held permanent resident (PR) status or U.S. citizenship at any time during the 12 months prior to their entry-on-duty date in the Fund, or who acquire PR status or U.S. citizenship after their entry on duty, will not be eligible for expatriate benefits.” (Staff Bulletin No. 85/1, Section 1.a.) (Emphasis in original.) - A “grandfathering” exception allowed present staff members in LPR status (and those who had initiated procedures to attain LPR status) to remain eligible for present and future expatriate benefits. (Staff Bulletin No. 85/1, Section 1.b.) ### Subsequent reassessments and 1994 reaffirmation - The 1985 policy generated controversy and was reassessed periodically. - In 1994 the Executive Board reviewed options: (I) revert to nationality; (II) adopt the “modified INTELSAT option” (considering the staff member’s spouse’s visa); or (III) retain Staff Bulletin No. 85/1. - Options (I) and (II) were rejected on grounds of cost and difficulty of administration, respectively; the Executive Board in 1994 decided to retain the 1985 policy. ### Staff Association and continued debate (1997–2001) - The Staff Association Committee (SAC) circulated a Discussion Paper, “Expatriate Benefits and Green Card Holders: Is Visa Status a Fair Criterion for Eligibility?” (October 1997), exploring difficulties with the 1985/1994 system and alternatives. - In 2001, as of May: - Total Fund staff: 2,649 - U.S. nationals (ineligible): 26 percent - G-4 visa holders (eligible): 60 percent - LPRs ineligible under 1985 policy: 9 percent - LPRs eligible by grandfathering: 5 percent - Annual cost to the Fund of providing expatriate benefits: approximately $11,000 per eligible staff member - SAC requested re-establishment of the nationality test, deeming the current practice “discriminatory, creating wide inequalities in benefits for staff members in broadly similar situations.” As an alternative, SAC proposed granting expatriate benefits to LPRs willing to convert to G-4 status. ### HRD report and rationale for change (2001) - HRD reported to the Executive Board (October 26, 2001) that expatriate benefits promote the Fund’s international character and aid recruitment and retention. - The HRD report argued the nationality criterion would be more consistent with the Articles of Agreement diversity mandate because LPR visa status holders are considered non-U.S. nationals for meeting geographic diversity objectives yet do not receive expatriate benefits. - HRD highlighted operational difficulties with the visa test due to increased international labor mobility: many non-U.S. nationals acquired LPR status for study or U.S. work experience without intent to remain permanently, disadvantaging those with U.S. experience who hold LPR status even if they convert to G-4. ### 2002 amendment (Staff Bulletin No. 02/2) — scope and conditions - On December 18, 2001 the Executive Board approved the amendment notified in Staff Bulletin No. 02/2 (January 11, 2002), effective May 1, 2002 (“2002 amendment”). - The 2002 amendment: - Extends expatriate benefits to current and newly appointed Fund staff who are LPRs on the condition that they relinquish their LPR status in favor of obtaining a G-4 visa. - Permits only one such change in status per IMF career. - Makes current G-4 staff who previously had been denied eligibility due to prior LPR status within the 12 months before entry on duty now eligible for expatriate benefits. - The Staff Bulletin cautioned that reacquisition of LPR status is subject to U.S. immigration law constraints and noted that “only time spent in G-4 status in the United States will count toward the 15 years required for reacquisition of LPR status.” - The Staff Bulletin announced that information and counseling sessions would be provided to assist staff in making an informed decision. ### Procedural and jurisdictional considerations in the dispute - The Respondent raised jurisdictional challenges in Answer and Rejoinder: - Jurisdiction ratione materiæ: Respondent argued Applicant was not “adversely affected” because the policy has not changed in any respect adverse to her and the 2002 amendment expanded her options (permitting conversion to G-4). - The Respondent relied on IMFAT precedent (Mr. “R”, IMFAT Judgment No. 2002-1 (March 5, 2002)) observing that denial of an exception (an “individual decision”) may be analytically indistinguishable from upholding the underlying “regulatory decision.” - The Tribunal observed: - The Commentary adopted by the Executive Board requires an applicant be “adversely affected” by a decision to challenge it; hypothetical questions or advisory opinions are excluded. - The Applicant is not hypothetical: under the visa-status policy (first adopted 1985, reconsidered 1994, and materially refashioned 2002), a staff member employed after 1985 and continuing to hold LPR status is not entitled to expatriate benefits; therefore Ms. “G” has been “adversely affected.” - The Tribunal concluded it has jurisdiction ratione materiæ. - Jurisdiction ratione temporis: - Article XX, Section 1 of the Tribunal’s Statute bars challenges to administrative acts taken before October 15, 1992. - Respondent argued the core policy dates from 1985 and thus is time-barred; cited IMFAT decisions Mr. “X” (IMFAT Judgment No. 1994-1 (August 31, 1994)) and Ms. “S” (IMFAT Judgment No. 1995-1 (May 5, 1995)) where Article XX barred applications challenging exceptions to policies established before October 15, 1992. - Intervenor argued the January 2002 amendment, Applicant’s post-2002 request for exception, and its denial are post-October 15, 1992 acts, and the amended policy may be considered “new” despite incorporating elements of prior policies. - The Tribunal noted prior jurisprudence where challenges to denials of later exceptions to pre-October 15, 1992 policies were time-barred. *IMF Administrative Tribunal, Judgment No. 2002-3 (Ms. “G”), IMF Administrative Tribunal Reports, Vol. II.* ### 67. In Mr. “X”, the substantive dispute between Applicant and the Fund ### 67. In Mr. “X”, the substantive dispute between Applicant and the Fund ### Jurisdictional determination: identification of the “administrative act” - The Tribunal was required to identify the allegedly illegal “administrative act” (in the sense of Article II) taken by the Fund, and to pinpoint when it took place. - The Tribunal concluded that the determination in 1986 of the period of Mr. “X”’s pensionable service, rather than the calculation and disbursement of his pension payments beginning in 1993, constituted the challenged “administrative act”: - “The calculation of Mr. “X”’s pension in 1993 was a purely arithmetical act governed by the decision of 1986 as to the extent of his pensionable service. . . . The fact that that decision of 1986 produces consequences for Mr. “X” now can have no effect upon the extent of the jurisdiction of the Tribunal; if it were otherwise, then the limitation on the commencement date of the Tribunal’s jurisdiction would be meaningless since the effects of innumerable pre-October 1992 acts may well be felt for years after the date when the Tribunal’s Statute came into force. Equally, the Applicant’s claim that the 1986 decision was open to reconsideration does not mean that it was not taken when it was taken. . . . Continued discontent with the results of an administrative act and eventual renewal of a challenge to its legality cannot put in question the fact that the act was taken, and taken when it was taken.” (Mr. “X”, para. 26.) ### Extension and application in Ms. “S” - The Tribunal applied and expanded the principles of Mr. “X” in Ms. “S”: - The Tribunal concluded that the challenged “administrative act” was the Plan provision itself (a Staff Retirement Plan amendment/revision) that pre-dated the Tribunal’s competence. - “Both the 1974 amendment to the Staff Retirement Plan and the 1991 revision of it pre-dated the establishment of the Tribunal. It follows that, pursuant to Article XX, Section 1 of the Statute, the Applicant’s complaint, insofar as it challenges the legality of an element of those provisions, is time-barred. The denial of requests for exceptional application or amendment of a ‘pre-existing’ provision equally cannot confer jurisdiction on the Tribunal it otherwise lacks, nor can a refusal to refer a request for amendment to the Pension Committee do so. That a current complaint about a rule which came into force before October 15, 1992 is not sufficient to give rise to jurisdiction which otherwise is absent follows from the principle that formed the basis of the Tribunal’s judgment in the case of Mr. “X” v. International Monetary Fund. That principle governs in respect of assertions of the illegality of pre-existing rules. It also governs requests for changes in pre-existing rules and requests for exception to their application.” (Ms. “S”, para. 21.) - The Tribunal further noted the interplay of Article VI, Section 2 and Article XX: “While Article VI, Section 2 of the Statute provides 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,’ that general proviso is subject to the lex specialis of Article XX. The specific governs the general.” (Ms. “S”, para. 22.) ### Facts in Ms. “G”: Executive Board actions on the visa test - The Fund’s Executive Board first adopted the visa test for eligibility for expatriate benefits in 1985, before the entry into force of the Tribunal’s Statute. - The visa test denies access to expatriate benefits to individuals who hold LPR visa status and who joined the Fund’s staff after 1985. - Executive Board actions within the Tribunal’s period of jurisdiction included: - reaffirmation of the visa test in 1994, when the Board considered three options (I) reverting to the nationality criterion; (II) adopting the “modified INTELSAT option;” or (III) retaining the 1985 policy, and chose option (III); - a broad re-examination presented by the Fund’s Human Resources Department in 2001, recommending an amendment refining eligibility requirements but retaining as fundamental policy that G-4 visa holders are entitled to expatriate benefits and LPR visa holders are not; - adoption of the proposed amendment to take effect in 2002. ### Tribunal’s temporal-jurisdiction conclusion in Ms. “G” - The Tribunal found that the 1994 reaffirmation and the 2002 amendment constituted re-consideration, reaffirmation, and amendment of the 1985 policy at the highest levels of the Fund’s decision-making. - Those Executive Board actions represent “administrative act[s]” falling within the Tribunal’s jurisdiction ratione temporis. - The Tribunal distinguished the present facts from Ms. “S” on the ground that in Ms. “S” there was no evidence of re-consideration and reaffirmation during the Tribunal’s jurisdiction apart from an individual decision; by contrast, in Ms. “G” the policy was re-considered and amended after the Statute took effect. - Conclusion on admissibility: because re-consideration, reaffirmation, and amendment of the 1985 policy took place years after the Statute of the Tribunal took effect, the Tribunal concluded that the Application and the Intervention should not be held inadmissible on temporal grounds. ### Merits issue presented: alleged discrimination in the visa-based rule - Central question: Does the Fund’s 1985 policy, reaffirmed in 1994, of determining eligibility for expatriate benefits on the basis of visa status discriminate impermissibly among categories of Fund staff? - Applicant’s challenge: the distinction between LPR and G-4 status may not correlate with the objectives of expatriate benefits (e.g., compensating for the additional costs of maintaining contacts with one’s home country); visa status may not reflect “cultural proximity” or degree of permanence in the United States. - Fund’s contentions: assuming jurisdiction, the policy is a proper exercise of managerial discretion, supported by evidence and rationally related to legitimate purposes; there is a rational nexus between the visa test and recruitment and retention objectives; costs associated with benefits are a legitimate consideration. ### Legal standards and precedents governing review of alleged discrimination - Established principle: the rule of nondiscrimination imposes a substantive limit on the exercise of discretionary authority in both policy-making and administrative functions of an international organization. - de Merode (World Bank Administrative Tribunal, WBAT Decision No. 1 (1981)) standard (quotation preserved in source): changes “must be based on a proper consideration of relevant facts. They must be reasonably related to the objective which they are intended to achieve. They must be made in good faith and must not be prompted by improper motives. They must not discriminate in an unjustifiable manner between individuals or groups within the staff. Amendments must be made in a reasonable manner seeking to avoid excessive and unnecessary harm to the staff. In this respect, the care with which a reform has been studied and the conditions attached to a change are to be taken into account by the Tribunal.” - Deference to managerial discretion: tribunals cannot substitute their own judgment for managerial policy choices; review is limited to whether a discretionary act was arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures. - Two types of discrimination claims: - an express classification differentiating between groups of staff; or - a facially neutral policy producing consequential differentiation. - Precedent examples: - D’Aoust (IMFAT) upheld a distinction between economist and non-economist salary treatment as reasonably related to the Fund’s mission. - World Bank standard: a classification must have a “rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” (Maurice C. Mould v. IBRD, WBAT Decision No. 210 (1999), para. 26.) - ILOAT: unequal treatment requires different treatment of staff who are “in the same position in fact and in law.” (In re Vollering, ILOAT Judgment No. 1194 (1992), para. 2.) - Principles extracted for application in Ms. “G” (from Tribunal’s review): - Respondent’s proffered reasons for the distinction in benefits must be supported by evidence; the Tribunal may ask whether the decision “. . . could . . . have been taken on the basis of facts accurately gathered and properly weighed.” (Lindsey, para. 12.) - The Tribunal must find a “. . . rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” (Mould, para. 26.) - The Tribunal may consider whether the stated reasons for different benefits are rationally related to the allocation of benefits to the two categories of staff. - Relevance of deliberative care: prior consideration and rejection of alternatives and the care with which reforms were studied may be relevant to the Tribunal’s assessment of whether a policy amounted to an unjustifiable discrimination (as noted in Mr. “R” and de Merode). ### Tribunal’s posture going forward in Ms. “G” - The Tribunal recalled deference to managerial discretion but affirmed its role to review whether discretionary decisions are arbitrary, discriminatory, improperly motivated, or unsupported by facts accurately gathered and properly weighed. - The issue to be adjudicated is whether the visa test’s classification (G-4 visa holders entitled to expatriate benefits; LPR visa holders not) has a rational nexus to legitimate objectives and is supported by evidence, or whether it amounts to unjustifiable discrimination. *IMF Administrative Tribunal Reports, Vol. II, Judgment No. 2002-3 (Ms. “G”), paras. 67–78.* ### 79. The Tribunal in the case before it must assess whether there is a ### 79. The Tribunal in the case before it must assess whether there is a rational nexus between the goals of the expatriate benefits policy—i.e. to ### Rational nexus and visa criterion - The Tribunal must assess whether there is a rational nexus between the goals of the expatriate benefits policy (compensate staff for costs associated with maintaining and renewing ties with their home countries through home leave and education allowances; facilitate their repatriation following service with the Fund; recruit and retain a diverse staff sustaining the international mission of the Fund) and the method for allocating these benefits. - Tribunal precedent (Mr. “R”) indicates a “rational nexus” does not require a perfect fit between objectives and classification; categories may rest upon generalizations. - The Fund’s choice of a visa criterion for allocation of expatriate benefits is assessed as reasonable: - The procedure for selecting the visa criterion was deliberate, not arbitrary. - The substance of the Fund’s choice is rational and defensible; an earlier nationality criterion was also reasonable. - Executive Board decisions in 1985, reaffirmed in 1994 and refined as of 2002, are managerial acts that cannot be overridden by the Tribunal when rationally related to the Fund’s mission and objectives, in particular regarding expatriate benefits. - Rationale for differential treatment: - It is reasonable to accord benefits to G-4 visa holders that are withheld from those in LPR status because LPR advantages run counter to a fixed intention to return to the home country upon completion of Fund service. - Generally, LPR status holders seek options permitting continued U.S. residence (indefinite expatriation) rather than definite repatriation; G-4 holders’ options are more limited and directed toward eventual repatriation. ### 2002 amendment and its effects - The focus of Applicant (Ms. “G”) and Intervenor complaints is on the effect of the 2002 amendment to eligibility requirements. - The 2002 amendment: - Opens eligibility for expatriate benefits to staff who are currently in LPR status (or were in LPR status within the 12 months prior to their joining the Fund) on the condition that they convert to G-4 visa status. - Differs from the 1985–2002 policy under which eligibility was assigned based on visa status held during the period preceding appointment, regardless of subsequent change to G-4 status. - Tribunal assessment of the amendment: - Making eligibility follow the staff member’s choice of visa better realizes the objective of a fair and rational allocation of expatriate benefits than the 1985 policy. - Because LPR status may suggest an intention to stay in the United States, permitting staff to choose status rather than remain locked into prior status is more finely tailored to the goals of repatriation. - As of 2002, only staff willing to incur the risk of not being able to regain LPR status in the future would be accorded expatriate benefits. - Applicant and Intervenor arguments: - They allege the 2002 amendment disadvantages older and longer-serving staff relative to younger staff and those already holding G-4 status with respect to the ability to regain LPR status in the future. - Applicant cites U.S. immigration law provision permitting individuals who have spent 15 or more years in G-4 status to move to LPR status, contending the possibility of acquiring LPR status in the future is part of the overall benefits package. - Intervenor asserts LPR status should be considered a “benefit” “facilitated” by the Fund. - Tribunal conclusion on LPR status: - The Tribunal sustains the Fund’s position: LPR status is not a Fund entitlement; it is a feature of current U.S. law. - LPR status facilitates expatriation, not repatriation. ### “Grandfathering” provision and jurisdiction ratione temporis - Applicant contends discrimination because staff employed in LPR status prior to 1985 continue to receive expatriate benefits under a “grandfathering” provision without relinquishing LPR status. - Applicant’s challenge is to the legality of the 1985 “grandfathering” provision. - Tribunal’s jurisdictional finding: - The Tribunal must consider whether it has jurisdiction ratione temporis over the challenge when there is no evidence the “grandfathering” provision was re-considered and re-adopted within the Tribunal’s period of jurisdiction. - The Tribunal finds jurisdiction ratione temporis is lacking; the “grandfathering” proviso remains as adopted in 1985. - Observations on organizational authority: - An international organization is not obliged to make retroactive a newly introduced benefit; “grandfathering” provisions maintain acquired rights of incumbents rather than ensure equality of treatment of subsequently recruited staff members. - Neither Ms. “G” nor Mr. “H” had ever been entitled to expatriate benefits under the Fund’s policy; therefore “grandfathering” is not correctly applied to them. ### Requests for exceptions to eligibility requirements - Applicant seeks an exception for herself based on age and personal circumstances. - Intervenor seeks an exception for all LPR staff who, by reason of age, could not fulfill 15 years of service before retirement if they were to convert to G-4 status now. - Respondent (the Fund) contends the policy does not allow exceptions and any exception would be ultra vires. - Tribunal conclusion: - Having concluded the Fund’s allocation policy is not discriminatory, the Fund did not err in declining to accord exceptions to the Applicant. *IMF Administrative Tribunal Judgment No. 2002-3 (Ms. “G”)* ### 91. Moreover, the expatriate benefits policy adopted by the Executive Board ### imfat-2 - 91. Moreover, the expatriate benefits policy adopted by the Executive Board ### Expatriate benefits policy — scope of authority and exceptions - The expatriate benefits policy adopted by the Executive Board does not expressly empower the Administration of the Fund to grant exceptions to the application of that policy. - Administration of the Fund is based on the Articles of Agreement and the policies in pursuance of those Articles adopted by the organs of the Fund. - While the Managing Director and his associates enjoy a measure of appreciation in exercising their authority, that discretion does not extend to granting exceptions to a Fund policy which, if granted, would run counter to its essential objectives. - Related index entries: - Judgment No. 2002-3 (Ms. “G”), para. 91; p. 230 — managerial discretion does not extend to making exceptions without express authority. - Judgment No. 2002-3 (Ms. “G”), para. 80; p. 227 — Executive Board’s selection of visa status as eligibility criterion sustained. ### Tribunal decisions and procedural outcomes - The Administrative Tribunal unanimously decided: - The Application of Ms. “G”, and that of Mr. “H” as Intervenor, are denied. - Decision signed by Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge. - Registrar: Celia Goldman. - Location and date: Washington, D.C., December 18, 2002. - ORDER (No. 2001-1) — Estate of Mr. “D”, Applicant v. International Monetary Fund, Respondent (Withdrawal of the Application): - On October 31, 2000, the Estate of Mr. “D” filed an Application contesting the decision of the International Monetary Fund Medical Benefits Plan to deny reimbursement of medical evacuation expenses incurred by the decedent. - On March 30, 2001, IMFAT Judgment No. 2001-1 (Admissibility of the Application) denied Respondent’s Motion for Summary Dismissal, resuming exchange of pleadings on the merits pursuant to the Tribunal’s Rules of Procedure. - Following agreement of the parties, the Applicant withdrew the Application; the Tribunal recorded termination of the proceedings. - Decision signed by Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge. - Registrar: Celia Goldman. - Location and date: Washington, D.C., July 31, 2001. - Order identifier and pagination: - ORDER (No. 2001-1) appears on p. 233 of the volume. ### Standards of review, discretion, and non‑discrimination - Abuse of discretion and deference: - Tribunal emphasizes importance of observance by the organization of its rules in review for abuse of discretion (Judgment No. 2002-2 (Ms. “Y” (No. 2)), para. 55; p. 189). - High degree of deference is afforded to the Fund’s policymaking in regulatory decisions (Judgment No. 2002-2 (Ms. “Y” (No. 2)), para. 46; p. 186). - Tribunal will not substitute its judgment for that of authority vested with discretion (Judgment No. 2002-1 (Mr. “R”), paras. 33–34; pp. 152–153). - Nondiscrimination and “rational nexus”: - Policy of determining eligibility for expatriate benefits on the basis of visa status does not discriminate impermissibly among categories of staff where a “rational nexus” exists between policy goals and allocation method (Judgment No. 2002-3 (Ms. “G”), paras. 79–86; pp. 226–228). - Nondiscrimination principle imposes substantive limits on discretionary authority in both policy-making and administrative functions (Judgment No. 2002-1 (Mr. “R"), paras. 30–32; pp. 151–152; Judgment No. 2002-3 (Ms. “G"), para. 76; pp. 223–224). ### Jurisdictional and procedural principles - Jurisdictional limits: - IMFAT is a tribunal of limited jurisdiction; its authority is confined to review of “administrative acts” as defined by the Statute (Judgment No. 2001-2 (Mr. “P” (No. 2)), para. 120; pp. 125–126; para. 122; p. 126). - No jurisdiction over challenges to decisions of the Executive Board as such (Judgment No. 2002-3 (Ms. “G”), para. 20; p. 204). - “Adversely affecting” requirement of Article II requires an applicant to have an actual stake in the controversy for justiciability (Judgment No. 2002-3 (Ms. “G”), para. 61; pp. 218–219). - Exhaustion of administrative channels: - Exhaustion requirement (Article V) aims to provide opportunities to resolve disputes and create a record for potential litigation (Judgment No. 2001-1 (Estate of Mr. “D”), paras. 66–68; pp. 48–50). - Exceptional circumstances may excuse delay in initiating administrative review (Judgment No. 2001-1 (Estate of Mr. “D"), paras. 98–128; pp. 60–72). - Intervenors are not required to exhaust channels of administrative review (Judgment No. 2001-2 (Mr. “P” (No. 2)), notes 15, 22; pp. 90, 96). ### Specific program and rule references (selected) - Expatriate benefits history, scope, and eligibility criteria detailed in Judgment No. 2002-3 (Ms. “G”), paras. 40–55; pp. 212–216. - Relevant General Administrative Orders cited: No. 8; No. 16; No. 17; No. 21; No. 31 (various references in Judgments cited). - Staff and plan provisions referenced: - Staff Bulletin No. 85/1; No. 02/2 cited in Judgment No. 2002-3 (Ms. “G"), paras. 46, 13, 53–55; pp. 214, 198, 201, 216. - Staff Retirement Plan provisions (SRP Section 4.2; Section 4.3; Section 4.6; Section 7.2; Section 9.1; Section 9.10; Section 11.3; Section 15.1) referenced in Judgment No. 2001-2 (Mr. “P” (No. 2)). *Administrative Tribunal of the International Monetary Fund (IMFAT) judgments and orders excerpts (selected entries and decisions, 2000–2002).* ### 1. The Tribunal shall be competent to pass judgment upon any ### imfat-2 - Statute of the Administrative Tribunal of the International Monetary Fund ### Jurisdiction and Competence - The Tribunal shall be competent to pass judgment upon any application: - by a member of the staff challenging the legality of an administrative act adversely affecting him; or - 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 this Statute; it shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts. - 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. - Any issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute. - 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. - For decisions taken between October 15, 1992 and the establishment of the Tribunal, the application shall be admissible only if filed within three months after the establishment of the Tribunal; the Tribunal is deemed established when staff has been notified by the Managing Director that all members have been appointed. - The competence of the Tribunal may be extended to any international organization upon terms established by a special agreement with the Fund; such agreements must bind the organization to the Tribunal’s judgments and responsibility for payment of any compensation awarded. ### Key Definitions and Procedural Rules - Definitions for purposes of the Statute: - “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” means: - any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff; - any current or former assistant to an Executive Director; and - any successor in interest to a deceased member of the staff defined above to the extent that he is entitled to assert a right of such staff member against the Fund. - 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. - The masculine pronoun shall include the feminine pronoun. ### Exhaustion of Administrative Review and Time Limits - 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. - Where available channels include the Fund’s procedure for complaints and grievances: - 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 do not include that procedure: - 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 shall be deemed exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal. - Admissibility time limits: - 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. - An application challenging the legality of a regulatory decision shall not be 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. - In exceptional circumstances, the Tribunal may waive the time limits if it considers the delay justified. - Filing an application does not suspend implementation of the contested decision. - No application may be filed or maintained after the applicant and the Fund have reached an agreement settling the dispute. ### Composition, Independence, and Administrative Support - Appointment and composition: - 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, associate members, and alternates must be nationals of a member country of the Fund at the time of appointment and must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence. - Reappointment is permitted; 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 replacement: - Any member with a conflict of interest in a case shall recuse himself. - Decisions shall be taken by the President and the associate members; if an associate member is 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. - 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 and status: - Members shall be completely independent; they shall not receive instructions or be subject to constraint. - In the performance of their functions, members shall be considered as officers of the Fund for purposes of the Articles of Agreement. - Administrative arrangements: - The Managing Director shall make the administrative arrangements necessary for the Tribunal’s functioning and shall designate personnel to serve as a Secretariat under the authority of the President; such personnel shall not disclose confidential information received in performance of their duties. - The expenses of the Tribunal shall be borne by the Fund. ### Evidence, Procedure, and Access to Counsel - Evidence and confidentiality: - The Tribunal may require production of documents held by the Fund, except that the Managing Director may withhold evidence if its introduction might hinder the operation of the Fund because of the secret or confidential nature of the document; such determination shall be binding on the Tribunal. - Applicant’s allegations concerning contents of any document withheld 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. - Rules of Procedure: - Members shall, by majority vote, establish the Tribunal’s Rules of Procedure, which shall include provisions concerning: - presentation of applications and related procedure; - intervention by persons to whom the Tribunal is open under Article II, Section 1, whose rights may be affected by the judgment; - presentation of testimony and other evidence; - summary dismissal of applications without disposition on the merits; and - other matters relating to the Tribunal’s functioning. - Access to counsel: - 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. ### Hearings, Deliberations, and Decisions - Sessions shall be held at the Fund’s headquarters at dates fixed in accordance with the Rules of Procedure. - The Tribunal shall decide in each case whether oral proceedings are warranted; oral proceedings shall be open to all interested persons unless exceptional circumstances require privacy. - Decisions and judgments: - All decisions 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 state the reasons on which it is based. - Deliberations of the Tribunal shall be confidential. - Publication and confidentiality protections: - 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 party. - Copies shall be made available by the Secretariat on request to any interested person, subject to the President’s discretion to delete identities or means of identification of applicants or other persons mentioned. ### Remedies, Compensation, and Costs - Remedies for individual decisions: - 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. - When prescribing non-monetary measures, the Tribunal shall fix an amount of compensation 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, order payment of a higher compensation, provided it states specific reasons for such an order. - Remedies for regulatory decisions: - 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 the annulment and on the basis of such regulatory decision shall be null and void. - Costs and allocation: - If an application is well-founded in whole or in part, the Tribunal may order that reasonable costs incurred by the applicant, including cost of 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 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: - 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 - the applicant intended to delay resolution or to harass the Fund or any of its officers or employees. - The amount awarded by the Tribunal shall be collected by 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. - Adjournment for procedural defect: - When a procedure prescribed in the Fund’s rules for taking a decision has not been observed, the Tribunal may, at the Managing Director’s request, adjourn proceedings for institution of the required procedure or for adoption of appropriate corrective measures, for which the Tribunal shall establish a time certain. ### Review, Revision, and Corrections of Judgments - Revision: - A party may request revision of a judgment within six months after acquiring knowledge of a discovered fact which might have had a decisive influence on the judgment and which was unknown both to the Tribunal and to that party at the time the judgment was delivered. - Interpretation and correction: - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. ### Report of the Executive Board — Establishment Rationale - The Executive Board began considering an administrative tribunal in 1986, reviewing major tribunals of other international organizations and key issues: role of tribunals, case types, access, composition and structure, and remedies and costs. - On that basis, the Executive Board prepared a draft statute and accompanying commentary and proposed adoption of the statute by the Board of Governors; the commentary explains each provision of the proposed statute. *Source: Statute of the Administrative Tribunal of the International Monetary Fund and Report of the Executive Board on the Establishment of an Administrative Tribunal for the International Monetary Fund* ### 1. The Tribunal shall be competent to pass judgment upon any ### The Tribunal shall be competent to pass judgment upon any application ### Scope of competence (Article II — 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. - (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(a) empowers the Tribunal to review a staff member’s challenge to the legality of an “administrative act” that adversely affects him; similar language appears in statutes of other tribunals. - Section 1(b) permits individuals who are not members of the staff but who have rights under Fund retirement or benefit plans (e.g., the Staff Retirement Plan (SRP), the Medical Benefits Plan (MBP), and the Group Life Insurance Plan) to bring claims concerning decisions taken under or with respect to those plans. Such claimants would be entitled to assert claims only with respect to decisions arising under or concerning the Fund’s retirement or benefit plans. ### Key definitions (Article II — Section 2) - For purposes of this Statute: - (a) the expression “administrative act” shall mean any individual or regulatory decision taken in the administration of the staff of the Fund. - (b) 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. - (c) 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; 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. - (d) 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. - (e) the masculine pronoun shall include the feminine pronoun. - Practical implications of definitions: - “Administrative act” covers individual and regulatory decisions affecting terms and conditions of employment, including staff regulations in the N Rules. - Jurisdiction requires an identified “decision” in the application filed; the Tribunal will typically review decisions after established administrative review channels (e.g., recourse to the Grievance Committee) have been pursued. - “Regulatory decision” jurisdiction includes Executive Board decisions on employment policy (e.g., adjustments to compensation, pensions, tax allowance, benefits, and job grading), SRP, and management-promulgated staff rules such as the General Administrative Orders. - Resolutions of the Board of Governors are excluded from Tribunal competence; the Board of Governors, as the organ establishing the Tribunal, can limit the Tribunal’s jurisdiction by resolution. ### Limits on powers and standards of review (Article III — sentences 1–3) - First sentence: The Tribunal shall not have any powers beyond those conferred under this Statute. - Principle: the Tribunal has limited jurisdiction and competence only insofar as conferred by its 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. - The Tribunal must apply: - formal sources of internal law (Articles of Agreement, By-Laws and Rules and Regulations, General Administrative Orders); - unwritten sources where applicable (administrative practice that creates legal rights and general principles such as the right to be heard, audi alteram partem). - Review of regulatory decisions is available but narrow; the Tribunal must respect established principles protecting institutional decision-making organs from judicial interference. - Review of discretionary individual decisions is limited: discretionary decisions cannot be overturned unless 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. - Acquired or vested rights are protected only in the narrow sense of the principle of non-retroactivity—amendments may not deprive staff of benefits earned or accrued before the effective date, but prospective alterations are generally permissible. - 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. - The Tribunal must respect the separation of powers and may not substitute its judgment for that of the Executive Board or other organs in matters of policy or managerial discretion. ### Binding interpretations and internal consistency (Article III — 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. - An Executive Board interpretation of the Articles is binding on the Tribunal in the context of a challenge to a decision, to avoid irreconcilable conflicts between Board and Tribunal interpretations. - Distinction preserved: interpretations of the Articles (binding) versus Tribunal findings of legality in particular cases (the Tribunal still decides legality but must be consistent with the Board’s interpretation). ### Tribunal’s authority to determine competence (Article IV) - Any issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute. - The Tribunal has the authority to determine its own competence within the terms of the Statute, consistent with the practice of comparable international administrative tribunals. *Report of the Executive Board (Administrative Tribunal of the IMF).* ### 1. When the Fund has established channels of administrative ### When the Fund has established channels of administrative review ### 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 include the Fund's procedure for complaints and grievances of individual staff members: - 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 do not include the procedure described above: - A channel of 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 and admissibility (Article VI) - Applications challenging the legality of an individual decision: - Not 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. - The three-month filing period begins only after administrative review (including recourse to internal committees like the Grievance Committee, if applicable) is fully exhausted and the Managing Director has decided whether to implement the Committee's 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 Tribunal's three-month statute of limitations. - Comparison: the comparable period in other international administrative tribunals is generally 60 days or 90 days; except in cases of death, the statute of limitations in other tribunals does not exceed 90 days. - Applications challenging the legality of a regulatory decision: - Not admissible if filed with the Tribunal more than three months after the announcement or effective date of the decision, whichever is later; - 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. - Interaction and examples: - 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 administrative review is exhausted on April 2, the applicant would have three months, i.e., from April 3 to July 2, inclusive, to file an application with the Tribunal. - If a favorable decision is received on April 2 granting the request but the relief is not forthcoming by June 2, the applicant would have three months, i.e., from June 3 to September 2, inclusive, in which to bring an action. - If a response denying the request was received before April 2, the three-month period for filing runs from the date of receipt (example: response on March 19 allows filing until June 20, inclusive). - Suspension of time limits: - Pursuit of administrative remedies as to interpretation or application issues suspends the time period for seeking review of the decision on grounds for which no administrative review is available. ### Tribunal discretion, effect of filing, and settlement - Waiver of time limits: - In exceptional circumstances, the Tribunal may decide at any time to waive the time limits prescribed under Sections 1 or 2 of Article VI 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 or after it has passed and must be predicated on a finding that the delay was justified. - Effect of filing on implementation: - The filing of an application does not suspend the implementation of the contested decision. - The Tribunal may, however, order interim measures if warranted by the circumstances of a particular case. - The rule preserves efficient administration and prevents disruption of day-to-day operations or the effectiveness of disciplinary measures, including removal from the staff in termination cases. - Special administrative handling (e.g., staff in G-4 visa status facing termination) should be addressed in staff rules on leave. - Settlement: - 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. ### Tribunal composition, appointment, and independence (Articles VII–VIII) - Appointment and terms: - The President: - Appointed for two years by the Managing Director after consultation with the Staff Association and with the approval of the Executive Board. - Shall have no prior or present employment relationship with the Fund. - Two associate members and two alternates: - Appointed for two years by the Managing Director after appropriate consultation. - Shall have no prior or present employment relationship with the Fund. - Nationality and qualifications: - The President and 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 and replacements: - The President and the associate members and their alternates may be reappointed in accordance with the appointment procedures. - A member appointed to replace a member whose term has not expired shall hold office for the remainder of the predecessor’s term. - Dismissal: - The Managing Director shall terminate the appointment of a member who, in the unanimous opinion of the other members, is unsuited for further service. - 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 unable to hear a case or has recused himself, 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. - Independence and status: - Members of the Tribunal shall be completely independent in the exercise of their duties; they shall not receive 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. - Members would enjoy 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. *Report of the Executive Board, Administrative Tribunal of the IMF.* ### 1. The Managing Director shall make the administrative arrange- ### Administrative arrangements and procedural provisions for the Tribunal ### Secretariat, administrative support, and funding - 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, in the discharge of duties hereunder, shall be under the authority of the President. - Secretariat personnel shall not, at any time, disclose confidential information received in the performance of their duties. This non‑disclosure obligation applies both outside and within the Fund, where personnel information is available only on a need‑to‑know basis. - The expenses of the Tribunal shall be borne by the Fund. Expenses include fees and expenses paid to the President and the associate members in connection with performance of their duties. - Administrative tribunals are usually serviced by a small secretariat; personnel assigned to serve the Tribunal are to be independent from the Fund in the performance of their duties. ### Evidence production, confidentiality, and procedural rules (Article X; Rules of Procedure) - The Tribunal may require production of documents held by the Fund, except that the Managing Director may withhold evidence if he determines that the introduction of such evidence 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. - If the Managing Director withholds a document and an applicant alleges the contents of that document, 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 (applicant’s assertion is prima facie evidence and creates a rebuttable presumption). - The Tribunal may examine witnesses and experts, subject to the same qualification regarding confidential material. - Subject to the Statute, members of the Tribunal shall, by majority vote, establish the Tribunal’s Rules of Procedure. The Rules of Procedure shall include provisions concerning: - presentation of applications and the procedure to be followed in respect to them; - intervention by persons to whom the Tribunal is open under Section 1 of Article II, whose rights may be affected by the judgment; - 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. - Rules of Procedure are to be adopted by a majority of the entire membership of the Tribunal (President, associate members, and alternates) and may cover filing procedures, obtaining information, oral proceedings, participation of amicus curiae, availability of judgments, and summary dismissal procedures. ### Representation, costs, and awards (Article X, Article XIV, Article XV) - Each party may be assisted in proceedings by counsel of his choice, other than members of the Fund’s Legal Department; each party shall bear the cost thereof, subject to Article XIV, Section 4 and Article XV. - As a general rule, each side bears its own costs, including attorney’s fees; however: - Article XIV, Section 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. In determining reasonableness, the Tribunal shall take 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 could award costs against an applicant under Article XV where an applicant’s claims were manifestly without foundation. - The Tribunal may recommend ex gratia payments in cases where unsuccessful applicants nevertheless had prima facie merit or significance. - Costs potentially includable: transportation to Washington, D.C., and fees of expert witnesses. - The Tribunal would be authorized to award costs only to the parties (applicant or the Fund) and not to other persons. ### Location, oral proceedings, and confidentiality of deliberations (Articles XI–XIII) - 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 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 that they be held in private. - Oral proceedings are generally rare in international administrative tribunals, which typically decide cases on written submissions and administrative records. - 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. - The deliberations of the Tribunal shall be confidential. - Dissenting opinions are possible under the statute; decisions do not require unanimity. ### Remedies, monetary limits, and effects of judgments (Article XIV) - Article XIV, Section 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. - Article XIV, Section 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 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, 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. - The Managing Director may elect monetary compensation in lieu of nonmonetary remedies (e.g., reinstatement) where implementation is deemed not possible or advisable. - If the Tribunal concludes that an application challenging the legality of a regulatory decision is well‑founded (Article XIV, Section 3), 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. - Annulment makes the regulatory decision unenforceable against the applicant in the immediate case and renders the regulatory decision ineffective vis‑à‑vis other staff members, who may seek relief within applicable time limits. - Limitations and practice parallels: - Most international administrative tribunals permit monetary compensation as an organizational alternative to nonmonetary relief; limits vary across tribunals. - The statute specifies a three‑hundred percent (300%) cap on compensation as a general rule, with an express provision allowing the Tribunal to exceed that limit in exceptional cases with specific reasons. *Report of the Executive Board — Administrative Tribunal of the IMF* ### 5. When a procedure prescribed in the rules of the Fund for the ### Administrative Tribunal of the International Monetary Fund — Articles XV–XXI and Rules I–VII: Procedural corrections, costs, judgment revision, publication, jurisdiction, affiliation, and initial procedures ### Procedural defects, adjournment, and corrective measures - When a procedure prescribed in the rules of the Fund for the taking of a decision has not been observed, the Tribunal may, at the request of the Managing Director, adjourn the proceedings for institution of the required procedure or for adoption of appropriate corrective measures, for which the Tribunal shall establish a time certain. - Section 5 of Article XIV permits corrective measures in respect of procedural errors committed by the Fund to be implemented after adjournment of a case in lieu of proceeding to decision on the merits. ### Costs, deterrence, and sanctions (Article XV) - 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 that 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. - Collection and waiver: - 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. - Purpose and scope: - The provision authorizes assessment of reasonable costs incurred by the Fund defending patently unfounded applications, serving as a deterrent to abusive or manifestly groundless claims. - The award of costs would not include expenses incurred by the Fund in the operation of the tribunal. - Enforcement mechanisms include deductions from amounts to which the applicant is owed by the Fund (such as salary or separation payments) or other means management deems appropriate. ### Revision and correction of judgments (Articles XVI–XVII) - Revision (Article XVI): - A party to a case in which a judgment has been delivered may request the Tribunal to revise the judgment in the event of the discovery of a 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. - The request must be made within a period of six months after that party acquired knowledge of such fact. - Interpretation and correction (Article XVII): - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. - Corrections and interpretations may be undertaken by the Tribunal on its own initiative or upon application by a party, including typographical and arithmetical errors. ### Publication of judgments and privacy protections (Article XVIII) - Archiving and delivery: - The original of each judgment shall be filed in the archives of the Fund. A copy of the judgment, attested to by the President, shall be delivered to each of the parties concerned. - Public availability and redaction: - A copy shall also be made available by the Secretariat on request to any interested person, provided that the President may decide that the 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 the identity of applicants or other persons (e.g., witnesses or complainants in sensitive matters) in copies, guided by privacy and confidentiality considerations. ### Amendment, temporal jurisdiction, and transitional provisions (Articles XIX–XX) - Amendment (Article XIX): - The Statute may be amended only by the Board of Governors of the Fund. - Temporal jurisdiction and transitional rules (Article XX): - 1. 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. - 2. In the case of decisions taken between October 15, 1992 and the establishment of the Tribunal, the application shall be admissible only if it is filed within three months after the establishment of the Tribunal. - For purposes of this provision, the Tribunal shall be deemed to be established when the staff has been notified by the Managing Director that all the members of the Tribunal have been appointed. - Effect: - The Tribunal is competent only to hear cases involving decisions taken on or after October 15, 1992 (the effective starting date referenced), and administrative acts taken before that date are not reviewable by the Tribunal. - Section 2 provides a transitional provision to extend the period for initiation of proceedings under Article VI for decisions taken between October 15, 1992 and establishment of the Tribunal. ### Affiliation of other international organizations (Article XXI) - The competence of the Tribunal may be extended to any international organization upon terms established by a special agreement with the Fund. - Requirements for affiliation: - Each special agreement shall provide that the organization concerned shall be bound by the judgments of the Tribunal and be responsible for the payment of any compensation awarded by the Tribunal in respect of a staff member of that organization. - Agreements shall include provisions concerning the organization’s participation in administrative arrangements for the functioning of the Tribunal and concerning its sharing the expenses of the Tribunal. - Limitations: - An 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 statute and Board of Governors voting (Part III–IV) - Adoption process: - The proposed statute was to be communicated to the Board of Governors; the Executive Board recommended that, if approved by the Board of Governors, the statute enter into force as of October 15, 1992. - Voting without meeting: - The Executive Board requested 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. ### Rules of Procedure: scope and key rules (Rules I–VII) - General (Rule I): - The Rules of Procedure apply to the Administrative Tribunal of the International Monetary Fund. - These Rules are subject to the Fund’s Articles of Agreement and the Statute of the Tribunal. - For purposes of the Rules, the masculine pronoun shall include the feminine pronoun. - Note: These Rules entered into force on February 18, 1994 and were amended on August 31, 1994. - Official language (Rule II): - The working language of the Tribunal shall be English. - President (Rule III): - The President shall preside over consideration of cases, direct the Registry, prepare an annual report on the Tribunal’s activities, and perform functions entrusted by the Rules. - Registry (Rule IV): - Under the authority of the President, the Registrar shall: - receive applications instituting proceedings and related documentation; - transmit all documents and make notifications required in connection with cases; - make for each case a dossier recording all actions taken, dates, and document movement; - attend hearings, meetings, and deliberations; keep minutes as instructed; and expeditiously perform functions entrusted by the Rules and tasks assigned by the President. - Recusal (Rule V): - A member shall recuse himself: - (a) in cases involving persons with whom the member has a personal, familial or professional relationship; - (b) 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; or - (c) if other circumstances make participation seem inappropriate. - Any member recusing himself shall immediately inform the President. - Counsel (Rule VI): - Each party may at any time choose to be assisted by counsel, whose designation shall be notified to the Registrar. - Applications (Rule VII): - Applications shall be filed by the Applicant or his duly authorized representative, following the form attached as Annex A; representation is notified via Annex B. - Each application submitted to the Tribunal through the Registrar shall contain: - (a) the name and official status of the Applicant; - (b) the name of the Applicant’s representative, if any, and whether such representative or another person shall act as counsel; - (c) the decision being challenged, and the authority responsible for the decision; - (d) the channels of administrative review pursued and the results thereof; - (e) the reasons why he believes the decision is illegal; - (f) a statement of the supporting facts; and - (g) the relief or remedy sought, including the amount of compensation, if any, claimed and any specific performance requested. - Annexes and copies: - The Applicant shall attach as annexes all documents cited in the application in an original or unaltered copy and in a complete text unless part is obviously irrelevant, including any Grievance Committee report and recommendation. - If a document is not in English, the Applicant shall attach an English translation. - Four additional copies of the application and its attachments shall be submitted to the Registrar. *Report of the Executive Board, Administrative Tribunal of the IMF* ### 5. An application shall satisfy the provisions of Article XX, and be ### 5. An application shall satisfy the provisions of Article XX, and be ### Application filing and formal requirements - An application shall satisfy the provisions of Article XX, and be submitted to the Tribunal within the time limits prescribed by Article VI, of the Statute. - If the application does not fulfill the requirements established in Paragraphs 1 through 4, the Registrar shall: - advise the Applicant of the deficiencies and give him a reasonable period of time, not less than fifteen days, in which to make the appropriate corrections or additions; - if corrections are made within the period indicated, the application shall be considered filed on the original date; - otherwise, the Registrar shall: - (i) notify the Applicant that the period of time within which to make the appropriate changes has been extended, indicating the length of time thereof; - (ii) make the necessary corrections when the defects in the application do not affect the substance; or - (iii) by order of the President, notify the Applicant that the submission does not constitute an application and cannot be filed as such. - Upon ascertaining that the formal requirements of this Rule have been met, the Registrar shall notify the Fund of the application and shall transmit a copy of it to the General Counsel. - The application shall be signed on the last page by the Applicant or the representative, if any, whom he has designated in accordance with Paragraph 1. In the event of the Applicant’s incapacity, the required signature shall be furnished by his legal representative. ### Rule VIII — Answer (Fund’s response) - Once an application has been duly notified by the Registrar to the Fund, the Fund shall answer the application in writing and submit any additional documentary evidence within forty-five days unless, upon request, the President sets another time limit. - The Fund’s answer shall be submitted to the Tribunal and to the Applicant through the Registrar. - The Fund shall include as annexes all documents referred to in the answer in accordance with the rules established for the application in Rule VII. - The answer shall be signed on the last page by the representative of the Fund. - Four additional copies of the answer and its attachments shall be submitted to the Registrar. - Upon ascertaining that the formal requirements of this Rule have been met, the Registrar shall transmit a copy of the Fund’s answer to the Applicant. ### Rule IX — Reply (Applicant’s response) - The Applicant may file with the Registrar a written reply to the answer within thirty days from the date on which the answer is transmitted to him, unless, upon request, the President sets another time limit. - The complete text of any document referred to in the written reply shall be annexed thereto in accordance with the rules established for the application in Rule VII. - The requirements of Rule VII, Paragraphs 4 and 8, shall apply to the reply. - Upon ascertaining that the formal requirements of this Rule have been met, the Registrar shall transmit a copy of the Applicant’s reply to the Fund. ### Rule X — Rejoinder (Fund’s final written pleading) - The Fund may file with the Registrar a written rejoinder within thirty days of receiving the Applicant’s reply, unless, upon request, the President sets another time limit. - The complete text of any document referred to in the written rejoinder shall be annexed thereto in accordance with the rules established for the application in Rule VII. - The requirements of Rule VIII, Paragraphs 2 and 3, shall apply to the rejoinder. - Upon ascertaining that the formal requirements of this Rule have been met, the Registrar shall transmit a copy of the Fund’s rejoinder to the Applicant. - Without prejudice to Rule XI, after the rejoinder has been filed, no further pleadings may be received. ### Rule XI — Additional pleadings - In exceptional cases, the President may, on his own initiative, or at the request of either party, call upon the parties to submit additional written statements or additional documents within a period which he shall fix. - Additional documents shall be furnished in the original or in an unaltered copy and accompanied by any necessary translations. - The requirements of Rule VII, Paragraphs 4 and 8, or Rule VIII, Paragraphs 2 and 3, as the case may be, shall apply to any written statements and additional documents. - Written statements and additional documents shall be transmitted by the Registrar, on receipt, to the other party or parties. ### Rule XII — 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 it is clearly inadmissible. - 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. - The complete text of any document referred to in the motion shall be annexed thereto in accordance with the rules established for the application in Rule VII. The requirements of Rule VIII, paragraphs 2 and 3, shall apply to the motion. - Upon ascertaining that the motion meets the formal requirements of this Rule, the Registrar shall transmit a copy thereof to the Applicant. - 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. - The complete text of any document referred to in the objection shall be annexed thereto in accordance with the rules established for the application in Rule VII. The requirements of Rule VII, Paragraphs 4 and 8, shall apply to the objection to the motion. - Upon ascertaining that the objection meets the formal requirements of this Rule, the Registrar shall transmit a copy thereof to the Fund. - There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests. ### Rule XIII — Oral proceedings - Oral proceedings shall be held if the Tribunal decides that such proceedings are necessary for the disposition of the case. - Before the commencement of oral proceedings, each party shall inform the Registrar and, through him, the other parties, of the names and description of any witnesses and experts whom the party desires to be heard, indicating the points to which the evidence is to refer. - The Tribunal may call witnesses and experts, decide on any application for their hearing, and determine the sequence of oral proceedings in consultation with the parties. - Where a witness is not in a position to appear, the Tribunal may decide that the witness shall reply in writing to the questions of the parties; the parties retain the right to comment on any such written reply. - Parties or their counsel may, under the direction of the President, put questions to witnesses and experts; the Tribunal may also examine them. - Each witness shall solemnly declare: “I solemnly declare upon my honor and conscience that my testimony shall be the truth, the whole truth and nothing but the truth.” - Each expert shall solemnly declare: “I solemnly declare upon my honor and conscience that my testimony will be in accordance with my sincere belief.” - The Tribunal may disregard evidence which it considers irrelevant, frivolous, or lacking in probative value. - The Tribunal may limit oral testimony where it considers the written documentation adequate. - The President is empowered to issue orders and decide matters necessary for the orderly disposition of cases, including ruling on objections concerning the examination of witnesses or the introduction of documentary evidence. ### Rule XIV — Intervention - Any person to whom the Tribunal is open under Article II, Section 1 of the Statute may, before the closure of the written pleadings, apply to intervene in a case on the ground that he has a right which may be affected by the judgment to be given by the Tribunal. - The rules regarding preparation and submission of applications specified above shall apply mutatis mutandis to the application for intervention. - Upon ascertaining that the formal requirements of this Rule have been complied with, the Registrar shall transmit a copy of the application for intervention to the Applicant and to the Fund, each being entitled to present views on the issue of intervention within thirty days. - Upon expiration of that deadline, whether or not the parties have replied, the President, in consultation with the other members of the Tribunal, shall decide whether to grant the application to intervene. If intervention is admitted, the intervenor shall thereafter participate in the proceedings as a party. - In order to inform the Fund community of proceedings pending before the Tribunal, the Registrar, upon the notification of an application to the Fund, shall, unless the President decides otherwise, issue a summary of the application, without disclosing the name of the Applicant, for circulation within the Fund. ### Rule XV — Amicus Curiae - The Tribunal may, at its discretion, permit any persons, including the duly authorized representatives of the Staff Association, to communicate their views to the Tribunal. ### Rule XVI — Time limits - The calculation of time limits prescribed in these Rules of Procedure, all of which refer to calendar days, 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. ### Rule XVII — Production of documents - The Applicant may, before the closure of the pleadings, request the Tribunal to order the production of documents or other evidence which he has requested and to which he has been denied access by the Fund, accompanied by any relevant documentation bearing upon the request and the denial or lack of access. - The Fund shall be given an opportunity to present its views on the matter to the Tribunal. - The Tribunal may reject the request to the extent that it finds that the documents or other evidence requested are clearly irrelevant to the case, or that compliance with the request would be unduly burdensome or would infringe on the privacy of individuals. - For purposes of assessing the issue of privacy, the Tribunal may examine in camera the documents requested. - The Tribunal may, subject to Article X, Section 1 of the Statute, order the production of documents or other evidence in the possession of the Fund, and may request information which it deems useful to its judgment. - When the Tribunal is not in session, the President shall exercise the powers set forth in this Rule. ### Rule XVIII — Judgments - All deliberations of the Tribunal shall be in private. The judgment shall be adopted by majority vote. - Once the final text of the judgment has been approved and adopted, the judgment shall be signed by the President and the Registrar and shall contain the names of the members who have taken part in the decision. - Any member differing as to the grounds upon which the judgment was based or some of its conclusions, or dissenting from the judgment, may append a separate or dissenting opinion. - The judgment and any appended opinions shall be transmitted to the parties and to amici curiae. They 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. ### Rule XIX — Revision of judgments - A party may request revision of a judgment issued by the Tribunal only in the event that a fact or a document is discovered which by its nature might have had a decisive influence on the judgment of the Tribunal and which at the time of the judgment was unknown to the Tribunal and to the party requesting the revision and such ignorance was not the responsibility of that party. - The revision must be requested within thirty days from the date on which the fact or document is discovered and, in any event, within one year from the date on which the party requesting the revision was notified of the judgment unless, upon request, the President sets another time limit. - The procedure set forth in Rules VIII through XI shall be applied, mutatis mutandis, to the request for revision. - The Tribunal shall decide whether to admit the application for revision. If the application is admitted, the Tribunal shall pass judgment on the matter at issue in accordance with these Rules. ### Rule XX — Interpretation of judgments - After a judgment has been rendered, a party may apply to the Tribunal requesting an interpretation of the operative provisions of the judgment in accordance with Article XVII of the Statute. - 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. - 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. ### Rule XXI — Miscellaneous provisions - The President shall, in consultation with the other members of the Tribunal, fix the dates of the Tribunal’s sessions. - 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. - 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. ### Annex A — Form of application (high-level fields) - I. Information concerning the personal status of the Applicant: - full name of Applicant; - where claim is based on employment rights of another person: name and official status of person whose rights are relied upon; relation of Applicant to that person; - 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: - Beginning and ending dates of each period of employment with the Fund; - Employment status at time of decision contested (whether in active service or in retirement); - 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: “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. ### Annex B — Form of appointment of representative (and counsel) - Appointment form text authorizes a named representative [and counsel]* to file/maintain an application with the IMF Administrative Tribunal, to sign pleadings, appear before the Tribunal, and take all necessary action in connection with the case on the Applicant’s behalf; includes Date and Signature fields. - Office of the Registrar contact details: - Address: 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-2.pdf_