## IMFAT Reports, Vol. III — Developments in the Jurisprudence of the IMF Administrative Tribunal: 2003–2004 ## Source details **Canonical URL:** [IMFAT Reports, Vol. III — Developments in the Jurisprudence of the IMF Administrative Tribunal: 2003–2004](https://www.imf.org/-/media/files/imfat/imfat-3.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/imfat-3.pdf.md) - [Structured JSON version](/-/media/files/imfat/imfat-3.pdf.json) --- ### Overview and key developments (2003–2004) - Volume III reproduces Judgments and Orders of the International Monetary Fund Administrative Tribunal rendered during the period 2003–2004 and includes an introductory analysis, topical Index, and an Appendix with the Tribunal’s Statute, Rules of Procedure, and the Executive Board report. - Tribunal activity in 2003–2004: - The Tribunal rendered three Judgments and two Orders during the period 2003–2004. - The Registrar is Celia Goldman; Washington, D. C.; September 2008. - Principal jurisprudential developments: - First challenges to denials of disability retirement under the Staff Retirement Plan (SRP) reached the Tribunal: Ms. “J”, IMFAT Judgment No. 2003-1 (September 30, 2003); Ms. “K”, IMFAT Judgment No. 2003-2 (September 30, 2003). In both cases the Tribunal rescinded the Administration Committee decisions and ordered disability pensions be granted. - The Tribunal articulated a three-part standard of review for SRP disability-retirement denials and characterized SRP Administration Committee disability determinations as functionally “quasi-judicial.” - The Tribunal applied res judicata principles to its own Judgments for the first time in Mr. “R” (No. 2), IMFAT Judgment No. 2004-1 (December 10, 2004), and resolved an equal-treatment claim concerning reimbursement of residential security costs for overseas staff. - All Applications considered were found well-founded and relief awarded pursuant to Article XIV remedial authority. - The Tribunal adopted revised Rules of Procedure effective for Applications filed after December 31, 2004; those Rules are to be published beginning with Volume IV. ### Tribunal’s standard of review for SRP disability-retirement decisions - Governing text: - Article III (second sentence) of the Statute: “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.” - Three-part standard the Tribunal applied to SRP Administration Committee denials: - 1) Did the SRP Administration Committee correctly interpret SRP Section 4.3 and soundly apply it to the facts, or was the Committee’s decision based on an error of law or fact? - 2) Was the Committee’s decision taken in accordance with fair and reasonable procedures? - 3) Was the Committee’s decision in any respect arbitrary, capricious, discriminatory or improperly motivated? - Factors affecting degree of deference: - the nature of the decision under review; - the grounds on which it is contested; - the authority or expertise vested in the original decision maker. - Distinctive features supporting heightened scrutiny for SRP disability decisions: - Functional character: construing Plan terms and applying them to particular facts is “quasi-judicial.” - Institutional channel: SRP Administration Committee both makes the administrative act and supplies the channel of administrative review; decisions are not reviewed by the Managing Director but are appealable directly (after reconsideration) to the Administrative Tribunal. ### Law of disability retirement under SRP Section 4.3 — legal tests preserved verbatim - SRP Section 4.3(a) (text preserved): - A participant in contributory service shall be retired on a disability pension before his normal retirement date on the first day of a calendar month not less than 30 nor more than 120 days immediately following receipt by the Administration Committee of written application therefor by the participant or the Employer; on the condition that the Pension Committee must find, on the recommendation of the Administration Committee and the certification of a physician or physicians designated by the Administration Committee, that: - (i) such participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform; - (ii) such incapacity is likely to be permanent; and - (iii) such participant should be retired. - SRP Section 4.3(b) (pension formula preserved): disability pension equals the normal pension payable if normal retirement date had fallen on the date of disability retirement, using highest average remuneration and eligible service at that time; in no event less than the smaller of: - (i) 50 percent of such highest average gross remuneration; or - (ii) the normal pension the participant would have received if he had remained a participant until his normal retirement date without change in such highest average remuneration. - SRP Sections 4.3(c)–(e) (medical reexamination, discontinuance, reduction, withdrawal) and 4.3(f) (definition of normal retirement date) are applied as written in adjudication and permanency analysis. ### Application of standard: Ms. “J” (Judgment No. 2003-1) - Factual and procedural highlights: - Employment: Verbatim Reporting Officer; began employment July 24, 1995; injury in September 1999 from repetitive use; workers’ compensation leave from September 9, 1999 into October 2000; filed Request for disability retirement June 8, 2000; Committee denial March 14, 2001; Application filed August 20, 2002. - Medical record: treating specialists in rheumatology, orthopedics, pain and rehabilitation medicine, psychiatry; no single precise diagnosis; Medical Advisor concluded lack of residual functional capacity for intensive repetitive arm and hand functions but doubted permanence absent psychotherapy; Committee relied on Medical Advisor and reviewing physicians in denying disability pension. - Job-matching evidence: Compensation and Benefits Policy Division listed six positions the Fund identified as potentially performable with “a reasonable amount of training and accommodation,” but the Tribunal found educational requirements and job standards for those positions “differing significantly” from a VRO’s training and experience. - Tribunal holdings and reasoning: - Interpreted “totally incapacitated” to mean incapable of performing any duty the Fund might reasonably call upon the participant to perform, not incapable of work generally. - Concluded Ms. “J” had become “totally incapacitated” for duties the Fund might reasonably require and that her incapacity was “likely to be permanent” in the sense she would remain unable to be appointed to a position in the Fund. - Rescinded the Administration Committee decision denying a disability pension and ordered a disability pension granted retroactive to Applicant’s retirement date. - Declined separate compensation for procedural unfairness as unnecessary given substantive relief. - Procedural guidance and recommendations to the Administration Committee (for future practice): - Ensure applicants have timely opportunity to rebut medical reports submitted to the Medical Advisor. - Confine the Medical Advisor’s role to medical questions; the Administration Committee should draw the ultimate conclusion on total and permanent incapacity. - Permit Committee members to review treating and reviewing medical reports and consider a tripartite Board of Medical Advisors model where appropriate. ### Application of standard: Ms. “K” (Judgment No. 2003-2) - Factual and procedural highlights: - Employment and medical history: Staff Assistant with long service; recurrent psychiatric illnesses with extended sick leave from 1993 and extended sick leave beginning August 1999; Request for disability retirement filed December 20, 1999; Committee denial March 14, 2001; Application filed August 15, 2002; separated under GAO No. 16 and received maximum 22½ months separation benefit which expired June 7, 2003. - Medical evidence: treating psychiatrist opined total incapacity; Medical Advisor and reviewing psychiatrist concluded technical capacity to perform duties but practical inability to sustain collaborative tasks; debate over intermittency and whether intermittent but severe impairments can meet SRP Section 4.3(a). - Tribunal holdings and reasoning: - Applied three-part standard (interpretation/application of Section 4.3; procedural fairness; arbitrariness). - Concluded Applicant was totally incapacitated to perform duties the Fund might reasonably call upon her to perform (Staff Assistant duties) because her psychiatric condition rendered constructive collaboration with co-workers infeasible. - Concluded incapacity was “likely to be permanent” given long-standing nature of condition, history of recurrent episodes, and medical evidence weighing in favor of permanency. - Rescinded the Administration Committee decision and ordered a disability pension granted retroactive to Applicant’s retirement; ordered the Fund to pay Applicant’s reasonable legal costs (assessment to follow). - Procedural observations and recommendations: - Noted Committee practices that raise concerns: lack of reasoned initial Decision, timing and confidentiality of medical evidence, and reliance on summaries rather than full treating records. - Recommended applicants be permitted to comment on all medical reports and that the Medical Advisor’s role be confined to medical issues, with ultimate factual-legal conclusion for the Committee. ### Res judicata, admissibility, and Mr. “R” (Judgment No. 2004-1) - Legal framework: - Article XIII (2): Judgments “shall be final, subject to Article XVI and Article XVII, and without appeal.” - Res judicata requires identity of parties, outcome sought (object), and cause of action/foundation in law. - Facts and claims: - Mr. “R”, former Director of the Joint Africa Institute, challenged denial of reimbursement of security costs he alleged were indirectly incurred because he lived in a hotel whose room rates included security services; sought compensation estimated at $54,000 (i.e., $1,500 per month × 36 months). - Earlier Application (Judgment No. 2002-1) challenged parity of benefits between overseas Office Directors and Resident Representatives and did not address treatment of indirectly incurred security costs. - Tribunal analysis and holdings: - Parties identical; outcome and legal foundation differ: earlier claim concerned parity of benefits; current claim concerned treatment of indirectly incurred security costs and interpretation/application of housing and security policies. - Concluded present claim not debarred by res judicata because the specific question of reimbursement for security costs indirectly incurred had not been decided previously. - Found Fund’s position—refusing to reimburse costs merely because they were indirectly incurred—unpersuasive in light of Fund practice of meeting necessary security costs and principle of equal treatment of staff’s right to physical security. - Rescinded Fund’s decision denying reimbursement and awarded $54,000 as “the most reasonable approximation that the record afford[ed]” of security costs indirectly incurred during the assignment. - Institutional recommendation: - Suggested Fund announce and circulate a clear and comprehensive statement of its policy on meeting necessary security costs for personnel posted abroad. ### Remedies and awards (Article XIV application and practice) - Remedial authority: - Article XIV (1): If application well-founded, Tribunal “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 non-monetary measures are fixed, Tribunal sets compensation payable if Managing Director decides not to implement measures within one month; amount not to exceed equivalent of three hundred percent (300%) of current or last annual salary except in exceptional cases. - Typical remedies in 2003–2004: - Granting of disability pensions to Ms. “J” and Ms. “K” retroactive to retirement dates (Ms. “J”, para. 179 and Decision; Ms. “K”, para. 116 and Decision). - Awarding $54,000 to Mr. “R” as approximation of indirectly incurred security costs (Mr. “R” (No. 2), paras. 53–54 and Decision). - Legal costs practice (Article XIV (4)): - Tribunal may order reasonable costs, including counsel fees, payable by the Fund where application is well-founded in whole or in part, taking into account nature and complexity of the case, nature and quality of work performed, and amount of fees relative to prevailing rates. - Orders in these volumes: - Order No. 2003-1 (Ms. “J”) — assessed compensable legal costs in the full amount submitted: $16,434.32 (December 23, 2003). - Order No. 2003-2 (Ms. “K”) — assessed compensable legal costs in the full amount submitted: $14,817.30 (December 23, 2003). - Tribunal accepts counsel’s itemized statement of costs as valid representation of costs “incurred by the applicant” and declines to probe private fee arrangements; did not deduct fees for intersecting workers’ compensation consultation where entries reasonably reflected concurrent consideration. ### Procedural and institutional guidance emerging from judgments - Procedural fairness principles emphasized: - Right to be heard (audi alteram partem) and meaningful opportunity to rebut medical reports. - Requirement in Committee Rules (Rule VII, para. 1) that each Decision be in writing stating reasons; failure to give reasons may deny meaningful response and raise procedural fairness concerns. - Committee should permit applicants to comment upon medical opinions submitted to, or rendered by, the Medical Advisor and consider permitting applicant-selected expert participation (tripartite Board of Medical Advisors model). - Medical Advisor’s role should be confined to medical questions and not to ultimate legal-judicial conclusions of total and permanent incapacity. - Standard-of-review clarification: - For managerial-discretion decisions, deferential “arbitrary, capricious, discriminatory, improperly motivated, error of law or fact, or violation of fair and reasonable procedures” test applies. - For quasi-judicial SRP determinations and matters where the Committee is the exclusive decision maker with direct appeal only to the Tribunal, heightened scrutiny applies, including examination of whether the Committee correctly interpreted Section 4.3 and whether the weight of evidence supports the result. ### Representative exact figures and temporal markers preserved from the record - Tribunal output in the period: three Judgments and two Orders (2003–2004). - Specific awards and amounts: - Mr. “R” security-cost award: $54,000. - Ms. “J” legal costs awarded: $16,434.32 (Order No. 2003-1, December 23, 2003). - Ms. “K” legal costs awarded: $14,817.30 (Order No. 2003-2, December 23, 2003). - Key dates: - Ms. “J” and Ms. “K” Judgments: September 30, 2003. - Mr. “R” (No. 2) Judgment: December 10, 2004. - Administration Committee Decisions on Review referenced: May 17, 2002 (both Ms. “J” and Ms. “K”). - SRP procedural timing language quoted: Section 4.3(a) — retirement effective first day of a calendar month not less than 30 nor more than 120 days after receipt of written application. ### Statute and Rules of Procedure — institutional framework summarized - Tribunal competence and jurisdiction (Article II and related provisions): - Competent to hear applications by staff challenging legality of administrative acts adversely affecting them and by enrollees/beneficiaries challenging administrative acts concerning benefit plans. - Exhaustion of administrative review required where Fund-established channels exist (Article V); admissibility time limits governed by Article VI. - Judgments final subject to Article XVI (revision) and Article XVII (interpretation/correction). - Procedural rules and practice (Rules of Procedure excerpts preserved): - Filing and cure period: Registrar must advise deficiencies and permit a reasonable cure period of not less than fifteen days; corrected filings are considered filed on original date. - Pleadings timetable: Fund’s Answer ordinarily within forty-five days; Applicant’s Reply within thirty days; Fund’s Rejoinder within thirty days. - Document production: Rule XVII permits Tribunal to order production of documents in Fund possession subject to Managing Director’s authority to withhold secret/confidential material; if withheld, applicant’s allegations concerning contents are deemed demonstrated absent probative contrary evidence. - Summary dismissal: Tribunal may summarily dismiss clearly inadmissible applications. - Intervention and amicus curiae: persons to whom Tribunal is open may apply to intervene; Tribunal may permit amici curiae, including Staff Association representatives, to communicate views. - Oral proceedings: Tribunal decides whether oral proceedings are warranted; evidentiary rules for witnesses and experts specified. *Source: International Monetary Fund Administrative Tribunal Reports, Vol. III (Developments in the Jurisprudence of the IMF Administrative Tribunal: 2003–2004; Judgments Nos. 2003-1, 2003-2, 2004-1; Orders No. 2003-1, 2003-2; SRP Sections and GAO provisions as quoted).* ### PREFACE ### PREFACE ### Background - Volume III of International Monetary Fund Administrative Tribunal Reports contains the Judgments and Orders of the International Monetary Fund Administrative Tribunal rendered during the period 2003–2004. - An introductory chapter titled “Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2003–2004” provides an analysis of the Tribunal’s jurisprudence for the period. - A detailed topical Index of the Judgments and Orders is included near the end of the volume. - An Appendix republishes 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. - The Registrar is Celia Goldman; Washington, D. C.; September 2008. ### Overview of Developments (2003–2004) - The Tribunal rendered three Judgments and two Orders during the period 2003–2004. - Key jurisprudential developments highlighted: - The first challenges to decisions denying requests for disability retirement under the Staff Retirement Plan (SRP) reached the Tribunal. - Ms. “J”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2003-1 (September 30, 2003). - Ms. “K”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2003-2 (September 30, 2003). - In both Judgments the Tribunal rescinded the decisions of the Administration Committee of the SRP and ordered that the disability pensions be granted. - The Tribunal articulated its standard of review for SRP disability retirement cases and clarified its relationship to the SRP Administration Committee as a channel of administrative review. - The Tribunal applied the principle of res judicata to its own Judgments for the first time in Mr. “R” (No. 2), Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2004-1 (December 10, 2004), addressing the possible preclusive effect of an earlier Judgment by the same Applicant. - On the merits in Mr. “R”, the Tribunal resolved an equal treatment question concerning coverage of residential security costs of staff members posted abroad. - All Applications considered during the period 2003–2004 were found well-founded and relief was awarded pursuant to the Tribunal’s remedial authority. - At the conclusion of 2004, the Tribunal adopted revised Rules of Procedure with effect for Applications filed after December 31, 2004; those Rules are to be published beginning with Volume IV. ### The Tribunal’s Standard of Review and Relationship to Administrative Review Channels - Governing legal provision: - Article III (second sentence) of the Statute: “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 defined “standard of review” as the degree of deference accorded to the decision maker’s judgment; the degree of deference may vary according to: - the nature of the decision under review; - the grounds on which it is contested; and - the authority or expertise vested in the original decision maker. - Distinct features of SRP disability retirement decisions: - They involve quasi-judicial decision making: construing SRP terms and applying them to particular facts. - The SRP Administration Committee both takes the administrative act and supplies the channel of administrative review; SRP decisions are subject to direct appeal to the IMF Administrative Tribunal (after reconsideration by the Committee) and do not involve the Managing Director. - The Tribunal’s institutional role: - The Tribunal affirmed its authority to make both findings of fact and conclusions of law and to review de novo the legality of an administrative act of the Fund, drawing upon the record assembled through administrative review procedures. - Relationship to prior standards: - For individual decisions taken in the exercise of managerial discretion, the Tribunal has applied the Commentary on the Statute’s formulation: 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 indicated that multiple factors comprise the standard of review for discretionary decisions and that some factors may call for stricter scrutiny. - In Ms. “J” the Tribunal rejected the Fund’s contention that disability retirement determinations are “quintessentially a discretionary judgment” subject only to an “arbitrary and capricious” standard; it found support in other international administrative tribunals’ jurisprudence for treating disability retirement decisions as quasi-judicial and thus subject to a higher degree of scrutiny. - The Tribunal relied on its earlier Judgment in Mr. “P” (No. 2), IMFAT Judgment No. 2001-2 (November 20, 2001), where it reviewed the “soundness” of an SRP Administration Committee decision and concluded that it was “in error,” to distinguish appellate review of SRP matters from ordinary review of discretionary acts. *International Monetary Fund Administrative Tribunal Reports, Vol. III (PREFACE).* ### Section 7.2 (b) of the SRP provides that decisions by the Administration Committee to deter- ### imfat-3 - Section 7.2 (b) of the SRP provides that decisions by the Administration Committee to deter- ### Standard of review for SRP Administration Committee decisions - Section 7.2 (b) of the SRP provides that decisions by the 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. See Mr. “P” (No. 2), para. 141. - The Tribunal applied Article III of its Statute requiring application of “. . . generally recognized principles of international administrative law concerning judicial review of administrative acts” and concluded disability retirement decisions must be scrutinized to determine: - Did the SRP Administration Committee correctly interpret the requirements of SRP Section 4.3 and soundly apply them to the facts of the case, or was the Committee’s decision based on an error of law or fact? - Was the Committee’s decision taken in accordance with fair and reasonable procedures? - Was the Committee’s decision in any respect arbitrary, capricious, discriminatory or improperly motivated? (See Ms. “J”, para. 128; see also Ms. “K”, para. 54.) ### The law of disability retirement under SRP Section 4.3 - SRP Section 4.3 provides that a Plan participant may be retired on a disability pension if: - “. . . such participant, while in contributory service, bec[omes] totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform; [and] such incapacity is likely to be permanent. . . .” - Case comparisons: - Ms. “J”: applicant was a verbatim reporter with a repetitive use injury impairing arms and hands; dispute centered on whether other duties could reasonably be asked of her. - Ms. “K”: applicant suffered psychiatric illness with recurring impairment; dispute centered on whether intermittent incapacity could amount to “total” incapacity. - Tribunal findings: - For Ms. “J”, the Tribunal reviewed job standards for six positions the Fund identified and concluded those positions required educational background “differing significantly” from that of a verbatim reporter; it held it would not be reasonable to expect the Fund to ask Ms. “J” to perform those duties or that she would be qualified with a reasonable amount of training. The Tribunal concluded Ms. “J” had become “totally incapacitated” under the SRP “. . . not in the sense that she is incapable of working at all but that she is incapable of performing any duty that the Fund may reasonably call upon her to perform.” (Ms. “J”, paras. 133, 140, 148.) - For Ms. “K”, the Tribunal examined the internal consistency of physicians’ reports and questioned possible minimization of the applicant’s condition by decision makers, including the Medical Advisor; it concluded that although symptoms were “intermittent”, they “may well have had a pervasive effect on her ability to maintain the position of Staff Assistant” and that she was “totally incapacitated, mentally, to perform the duties in the Fund that she might be reasonably called upon to perform, namely those of Staff Assistant.” (Ms. “K”, paras. 62, 67–75, 78.) - Permanency analysis: - The Tribunal applied SRP Section 4.3(a)(ii) requiring incapacity be “likely to be permanent”. - In Ms. “J”, the Tribunal concluded the condition was likely permanent “. . . in the sense that she will remain unable to be appointed to a position in the Fund.” (Ms. “J”, para. 157.) - In Ms. “K”, the Tribunal evaluated seriousness, long-standing nature, ease of treatment, and compliance with treatment and found the incapacity “likely to be permanent” under the SRP. (Ms. “K”, paras. 79–95.) - Outcome: The Tribunal concluded both Applicants met the SRP requirements for disability retirement and rescinded the SRP Administration Committee decisions. (Ms. “J”, para. 179 and Decision; Ms. “K”, para. 116 and Decision.) ### Procedural fairness in disability retirement decisions - The Tribunal affirmed authority to review disability retirement decisions for procedural fairness and observed the applicant’s stake “deserves a high level of procedural protection.” (Ms. “J”, para. 162; Ms. “K”, para. 100.) - Having found the Applicants successful on substantive grounds, the Tribunal did not pass on procedural complaints but noted there was “room to question” whether Ms. “J” and Ms. “K” received sufficient and timely notice and opportunity for rebuttal. (Ms. “J”, paras. 167–169; Ms. “K”, paras. 104–106.) - Procedural guidance offered: - The Medical Advisor’s role should be confined to medical questions and should not extend to the ultimate determination of whether the applicant is “totally and permanently incapacitated”; drawing that ultimate conclusion is the function of the Administration Committee. (Ms. “J”, para. 175; Ms. “K”, para. 112.) - The Tribunal provided a series of procedural considerations for future Administration Committee practice. (Ms. “J”, paras. 171–176; Ms. “K”, paras. 108–113.) ### Res judicata and admissibility of subsequent applications - The Tribunal emphasized its Judgments are “final, subject to Article XVI and Article XVII, and without appeal.” (Article XIII (2).) - Mr. “R” (No. 2) clarified res judicata requires three elements be the same in both cases: parties, outcome sought, and cause of action foundation in law. (Mr. “R” (No. 2), paras. 27–29.) - Application of res judicata in Mr. “R” (No. 2): - Parties were the same; Tribunal examined whether outcome sought and legal foundation differed between the two Applications. - First Application: challenged differential benefits (overseas assignment allowance and housing allowance) between overseas Office Directors and Resident Representatives. - Second Application: sought either (a) interpretation of housing allowance to account for security costs in rental rates; and/or (b) interpretation of security “policy” to reimburse security costs incurred indirectly. - Tribunal concluded the current claim was not debarred by res judicata because it raised a different question—treatment of indirectly incurred security costs—which had not been addressed in the earlier Judgment. (Mr. “R” (No. 2), paras. 33–44.) ### Equal treatment and security costs (Mr. “R” (No. 2)) - Central issue: whether the Fund’s failure to reimburse security costs indirectly incurred by a staff member who rented security-enhanced accommodation violated equal treatment. - Fund position: decision consistent with policy and sound business reasons for paying security costs directly rather than reimbursing indirectly incurred costs. - Tribunal conclusion: - The Tribunal found Mr. “R”’s argument persuasive, holding that the Fund’s policy of meeting security costs did not justify absolving the Fund of costs simply because they were indirectly rather than directly incurred: “The Fund ‘avoided’ those costs, but Mr. ‘R’ could not avoid them. The Tribunal sees no cogent consideration, in light of the Fund’s policy of meeting security costs, why Respondent should be absolved of those costs in the case of Mr. ‘R’ simply because they were indirectly rather than directly incurred. On the contrary, equal treatment of staff in their fundamental right to enjoy physical security should govern.” (Mr. “R” (No. 2), para. 52.) - The Tribunal noted it was dealing with a “singular factual circumstance.” (Mr. “R” (No. 2), para. 59.) - Remedy: The Tribunal awarded the “most reasonable approximation that the record afford[ed]” of the costs indirectly incurred by Mr. “R” in renting security-enhanced accommodation for the duration of his appointment as overseas Office Director. (Mr. “R” (No. 2), paras. 53–54 and Decision.) ### Remedies and legal costs awarded by the Tribunal - Remedial authority: Article XIV (1) provides that if the Tribunal concludes an application 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.” - Typical remedies in the period 2003–2004: - In Ms. “J” and Ms. “K”, disability pensions were ordered to be granted retroactively to the Applicants’ retirement dates. (Ms. “J”, para. 179 and Decision; Ms. “K”, para. 116 and Decision.) - In Mr. “R” (No. 2), the Tribunal awarded an approximation of indirectly incurred security costs. (Mr. “R” (No. 2), paras. 53–54 and Decision.) - Legal costs: - Under Article XIV (4), the Tribunal may order that reasonable costs incurred by the applicant, including counsel fees, be 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. - In Ms. “J” and Ms. “K”, the Tribunal ordered that reasonable legal costs be borne by the Fund and awarded the full amounts submitted by the Applicants, having regard to statutory factors. (Ms. “J”, paras. 181–183; Ms. “K”, paras. 118–119.) - The Tribunal accepted statements prepared by Applicants’ counsel as valid representations of “costs incurred by the applicant in the case” and declined to probe fee arrangements between Applicants and counsel. (Ms. “J” (Order No. 2003-1), para. First; Ms. “K” (Order No. 2003-2), para. First.) - In Ms. “J”, the Tribunal rejected a proposed reduction of fees attributable to consultation on a workers’ compensation claim on the ground that such consultation was reasonably part of the combined consideration of intersecting complaints; no diminution of the fee award was applied. (Ms. “J”, para. 89; Ms. “J” (Order No. 2003-1), para. Second.) *Source: IMF Administrative Tribunal Reports, Vol. III (developments in the jurisprudence of the IMF Administrative Tribunal: 2003–2004).* ### Conclusion ### Conclusion ### Major substantive developments (2003–2004) - The Tribunal addressed several issues of substantive law not previously ruled upon during 2003–2004, including interpretation of the Fund’s Staff Retirement Plan provision governing retirement for participants who become totally incapacitated for duties the Fund might reasonably call upon them to perform and whose incapacity is likely to be permanent. - In deciding disability retirement cases, the Tribunal formulated its standard of review for disability retirement decisions, characterizing SRP Administration Committee decision making as “quasi-judicial” and describing the Tribunal’s role as exercising “appellate authority.” - For the first time, the IMFAT confronted a claim of res judicata as a defense to admissibility of an Application. The Tribunal concluded: - Article XIII (finality of judgments) applies the principle of res judicata to the IMFAT’s Judgments. - An Applicant’s second Application was not barred by his earlier IMFAT Judgment where the legal foundation and the outcome sought in the second Application differed from the first. - The Tribunal applied the principle of equality of treatment in deciding the claim on the merits. - The Tribunal exercised remedial authority pursuant to Article XIV of its Statute by rescinding contested decisions and prescribing corrective measures in Ms. “J”, Ms. “K” and Mr. “R” (No. 2), and by awarding reasonable legal costs to Applicants in Ms. “J” and Ms. “K”, setting principles for future cases. ### Case focus: Judgment No. 2003-1 — Ms. “J” v. International Monetary Fund (September 30, 2003) - Procedural timeline and participants: - The Tribunal met on September 29 and 30, 2003; composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges. - Ms. “J”, a former staff member, contested the Administration Committee’s denial of her application for disability retirement. - Parties’ positions: - Applicant: contended the Administration Committee erred in interpreting and applying the standard for disability retirement and that the decision was procedurally irregular. - Respondent (Fund): maintained the Administration Committee’s decision was not arbitrary, capricious, or procedurally defective and should be sustained. - Procedural steps and pleadings: - August 20, 2002: Ms. “J” filed an Application; Registrar advised deficiencies under Rule VII paras. 1 and 3; Applicant corrected within the 15-day period and Application is considered filed on the original date. - August 26, 2002: Application transmitted to Respondent. - September 5, 2002: Registrar issued a summary of the Application within the Fund pursuant to Rule XIV, para. 4. - October 10, 2002: Respondent filed its Answer. - Applicant requested production of documents under Rule XVII; two disputed categories related to records of discussions with Personnel Officers and records supporting Respondent’s claim it sought to identify another suitable position for Applicant. - October 18, 2002: The President granted the disputed document requests under the broad discovery standard of Rule XVII, finding the documents not “clearly irrelevant.” - Applicant requested an extension to file the Reply due to timing of document availability; the President, under Rule IX para. 1 and Rule XXI paras. 2 and 3, granted an extension to account for the production period. - November 25, 2002: Applicant submitted her Reply. - December 27, 2002: Fund’s Rejoinder filed. - December 18, 2002: Applicant submitted a statement of legal costs; March 5, 2003: President afforded Respondent 15 days to comment; Respondent filed comments on March 17, 2003. - Oral proceedings and evidentiary considerations: - Applicant noted potential conflicts in testimony and proposed hearings; Tribunal determined conflicts were not necessary for disposition and did not hold oral proceedings, pursuant to Article XII and Rule XIII, para. 1. - Amicus Curiae participation: - October 29, 2002: Staff Association Committee (“SAC”) applied under Rule XV to communicate views as Amicus Curiae, addressing “systemic issues” relating to SRP Administration Committee procedures and construction of SRP provisions. - October 31, 2002: President transmitted SAC’s application to parties for views, under Rule XXI para. 3. - Applicant (November 20, 2002) consented to SAC participation and opening pleadings; Respondent (December 2, 2002) questioned systemic-issue basis and opposed opening pleadings on confidentiality grounds. - December 9, 2002: Tribunal granted SAC leave to file amicus brief and transmitted the dossier following receipt of the Fund’s Rejoinder; SAC filed its brief on January 29, 2003; Applicant and Respondent submitted observations on February 20 and 21, 2003. - Tribunal found the SAC’s statement “discerning and constructive” and took it fully into consideration. - Remedial and costs outcomes (summary reference): - In Ms. “J” and other cases during 2003–2004, the Tribunal rescinded contested decisions, prescribed corrective measures, and awarded reasonable legal costs in Ms. “J” and Ms. “K”, establishing principles for future applications for legal costs. ### Legal framework reviewed: Disability retirement and related SRP provisions - SRP Section 4.3(a) — criteria for granting disability pension: - A participant in contributory service shall be retired on a disability pension before his normal retirement date on the first day of a calendar month not less than 30 nor more than 120 days immediately following receipt by the Administration Committee of written application therefor by the participant or the Employer; on the condition that the Pension Committee must find, on the recommendation of the Administration Committee and the certification of a physician or physicians designated by the Administration Committee, that: - (i) such participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform; - (ii) such incapacity is likely to be permanent; and - (iii) such participant should be retired. - SRP Section 4.3(b) — formula for disability pension: - A disability pension shall become effective upon retirement and shall be equal to the normal pension that would be payable to the participant if his normal retirement date had fallen on the date of his disability retirement, but using for such computation his highest average remuneration and eligible service at the time of his disability retirement. In no event, however, 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. - SRP Section 4.3(c)–(e) — medical reexamination, discontinuance, reduction, and withdrawal: - (c) Administration Committee may require medical examination not more often than once a year; failure to permit examination may lead to discontinuance and eventual deeming that incapacity has wholly ceased and withdrawal from the Plan. - (d) If Administration Committee finds incapacity has wholly ceased or earning capacity regained, disability pension shall cease; partial cessation permits reasonable reduction; restoration is possible if incapacitation reoccurs under specified conditions, subject to subsection (e). - (e) If disability pension is discontinued pursuant to (c) or (d) and not restored within a period of five years from such discontinuance, and if the retired participant shall not within such period again become a participant, he shall be deemed to have withdrawn from the Plan as of the date his disability pension was discontinued, with eligible service accrued to that date, and shall be entitled to benefits provided in Section 4.2 or Section 4.5(a), (b), or (c), whichever is applicable. - SRP Section 4.3(f) — definition of normal retirement date: - For purposes of Section 4.3, normal retirement date shall mean the first day of the calendar month next following the 65th anniversary of his date of birth, or the date of such anniversary if it shall fall on the first day of a calendar month. - Other internal law considerations: - Separation of staff for medical reasons and the Fund’s workers’ compensation policy are sufficiently embedded in the facts and contentions to be reviewed alongside the SRP disability retirement provisions. *IMF Administrative Tribunal Reports, Volume III — Judgment No. 2003-1 (Ms. “J”) and related 2003–2004 conclusions.* ### 23. Separation of a staff member in the case of medical disability—as ### 23. Separation of a staff member in the case of medical disability—as ### Legal framework and separation procedures under GAO No. 13 (Annex I) - GAO No. 13, Rev. 5 (June 15, 1989) Annex I provides for separation either at the staff member’s initiative or at the Fund’s initiative. - Section 1 — Separation at the staff member’s initiative: - 1.01 A staff member may request separation on grounds of medical disability by writing to the Director of Administration [now the Director of Human Resources]. - The staff member must be ready to present medical evidence and must be willing to undergo examinations deemed necessary by the Fund’s medical advisors. - Section 2 — Separation at the Fund’s initiative: - 2.01.1 In the case of a staff member in sick leave status, separation may be effected if “. . . on the basis of medical advice the Director of Administration has formed the opinion that the staff member will not be able to return to duty in the foreseeable future.” - 2.01.2 Separation may also occur when: - “. . . over a prolonged period the staff member has been prevented, for medical reasons, from performing the duties assigned to him in an acceptable manner, and if another position suitable for the staff member is not found in accordance with the provisions of GAO No. 11 (Salary Administration), the Director of Administration shall seek the advice of the Fund’s Health Services Department on the prospects for improvement within a reasonable period of time. If, on the basis of this advice, the Director of Administration forms the opinion that the staff member should be separated for medical reasons, the procedures outlined below shall be initiated.” (Section 2.01.2) - 2.02.1 When the Director of Administration reaches the opinion that a staff member should be separated for medical reasons, the opinion shall be communicated in writing, stating reasons and specifying the last date by which any objection must be received. - 2.02.2 If no objection is notified, GAO No. 16 procedures take effect. - 2.03 If the staff member objects, a panel of medical experts (one designated by the Administration, one by the staff member, and a third selected by the other two) will render an opinion as to the staff member’s condition in the context of the work demands placed on him; “[n]ormally, the panel shall examine the staff member personally.” (Section 2.03.4) - 2.04.1 The Director of Administration decides based on the panel’s medical opinion whether there are sufficient grounds for medical separation. - 2.04.2 If separation is decided, “the procedures in GAO No. 16 shall be followed. In the case of participants in the Staff Retirement Plan, this will also include a determination of eligibility for a disability pension.” (GAO No. 13, Annex I, Section 2.04.2) ### Interaction with GAO No. 11 and GAO No. 16; separation payments - GAO No. 11, Rev. 3 (January 14, 1999) — relevant provision: - 6.04 If a staff member’s performance is impeded for medical or other personal reasons and no other vacant position at the same grade is available, the staff member may be assigned to a vacant position at a lower grade as an alternative to separation, subject to special terms and conditions. - 6.04.1 The determination that a staff member is unable to perform duties shall be made in accordance with Annex I to General Administrative Order No. 13, Rev. 5. - GAO No. 16, Rev. 5 (July 10, 1990) — Section 11: - Effective “[i]n case of permanent incapacity, when a determination has been made in accordance with the provisions of Annex I to General Administrative Order No. 13 that a staff member shall be separated for medical reasons. . . .” - GAO No. 16, Section 11.02 requires that separation of an SRP participant shall not be implemented until a determination has been made under the Plan as to eligibility for a disability pension. - GAO No. 16, Section 11.04 provides that if a separated staff member does not receive a disability pension, he will be automatically granted a separation payment from the Separation Benefits Fund. - Separation Benefits Fund payment formula (GAO No. 16 excerpt): - Payment equivalent to one and one-fourth months’ salary for each year of service, subject to a maximum that is the smaller of: - (a) the equivalent of 22!/2 months’ salary; and - (b) the amount of salary that would otherwise have been payable between the last day on duty and mandatory retirement age of 65. - Salary rate used is the salary on the last day on duty; length of service computed to the nearest full month served. ### Workers’ compensation policy (GAO No. 20, Rev. 3) - GAO No. 20, Rev. 3 (November 1, 1982) provides benefits and compensation for illness, accidental injury or death arising out of, and in the course of, Fund employment. (Section 1.01) - The policy is administered by a Claim Administrator, an outside company engaged to administer the policy. (Sections 2.01.5 and 10.01) - Compensation for permanent disability (Section 5): - 5.01.1 Permanent Total Disability: annuity equivalent to 66–2/3 percent of final pensionable remuneration; payment commences immediately upon date of separation and continues for the duration of total disability. Permanent total disability determined by the Claim Administrator “. . . in accordance with the procedure for determining such disability under the Fund’s Staff Retirement Plan.” - 5.01.2 Permanent Partial Disability: lump sum determined in accordance with the Schedule and principles in the Annex; schedule adjusted annually for cost-of-living increases (subsection 7.02). - Section 6.01 requires that annual compensation payments for permanent total disability under workers’ compensation be reduced by the amount of all non-lump sum benefits paid under the SRP for the same illness or injury. - Section 8 — Medical Expenses: - 8.01 The Fund shall pay all reasonable medical, hospital and directly related costs arising out of, and in the course of, Fund employment. - GAO No. 13, Rev. 5 (June 15, 1989), Section 4.07 extends “special sick leave” in cases covered under workers’ compensation. - Appeal rights: - Section 10.02 Right of Appeal: a staff member may appeal the Claim Administrator’s finding to the Grievance Committee under procedures set forth in subsection 4.01 of General Administrative Order No. 31, Rev. 1. ### Case: Ms. “J” — factual background and administrative handling - Employment and role: - Ms. “J” began employment on July 24, 1995, and began participating in the Staff Retirement Plan on that date. - Position: Verbatim Reporting Officer (VRO), duties involving almost exclusively stenographic and computer keyboards; specialized training (associate degree) and experience. - Age at hire: 25 years old. - Injury and medical history: - September 1999: Applicant experienced a repetitive use injury causing pain and discomfort in both hands and arms arising from verbatim reporting. - Applicant’s description of onset: “At approximately 4 pm on September 8, 1999, my whole life changed. . . . my hands, wrists, and forearms no longer felt like my own – they would not obey my commands and, in fact, seemed to punish me for using them, causing shooting pains, like electric shocks, burning and aches, as well as substantial loss of dexterity and strength. . . .” - Multiple evaluations by specialists in rheumatology, orthopedics, pain and rehabilitation medicine, psychiatry, occupational medicine, and a vocational rehabilitation specialist. - No precise diagnosis or prognosis established with certainty. - Applicant undertook therapies including medication, physical therapy, chiropractic manipulation and psychiatric counseling. - Applicant’s late 2002 statement: although injury occurred more than three years earlier, “I am still affected by it. I hope every day that my hands will improve, but the reality is that they might stay the same or even worsen.” - Work status and administrative actions: - September 9, 1999: Respondent placed Ms. “J” on paid workers’ compensation leave; leave continued into October 2000; attempted brief return in February 2000 was unsuccessful. - May 25, 2000: Occupational health physician with Bank/Fund Health Services concluded it was “. . . highly unlikely that Ms. [“J”] will be able to perform her current job in the foreseeable future,” and communicated this opinion to Human Resources Department (HRD). - June 7, 2000: Applicant reportedly advised to apply for a disability pension because Fund concluded she could not return to her former position and no other suitable position was available; HRD explained mandatory separation benefits under GAO No. 16 would only be available if she first pursued disability retirement under the SRP. - Applicant’s request for disability retirement: - June 8, 2000: Ms. “J” filed a Request for disability retirement with the Administration Committee of the Staff Retirement Plan. - Applicant asserted inability to operate shorthand machine or perform VRO functions, severe limitation in activities involving hands, “consensus of medical opinion is that I will not be able to return to my former position in the foreseeable future.” - Medical Advisor and vocational assessments: - August 29, 2000: SRP Medical Advisor reported treating rheumatologist diagnosed “over-use syndrome” and “wrist flex tendonitis”; tests showed “. . . no evidence of Carpal Tunnel Syndrome, peripheral neuropathy or cervical radiculopathy.” - Medical Advisor’s OPINION: “Ms. [“J”] lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions as a result of ‘chronic pain syndrome.’ It would be expected that she would be able to perform, with appropriate accommodations, tasks that the IMF might reasonable [sic] ask of her. It is doubtful that her work performance incapacity is likely to be permanent.” - Medical Advisor’s RECOMMENDATION: - Consider an independent medical evaluation by a Pain Specialist - Consider an independent medical evaluation by a Psychologist/Psychiatrist - Consider a formal assessment of her vocational status and capacity - October 23, 2000: Upon expiration of workers’ compensation leave, Ms. “J” placed on administrative leave with pay pending further review of medical records; leave continued until July 25, 2001. - Vocational rehabilitation specialist reported there are “very few options open to the client that do not require frequent use of the hands” and that many alternative jobs are menial and difficult to place given severe hand limitations; these reports were transmitted to the Joint Bank/Fund Health Services Department on January 5, 2001. - HRD conclusions on internal placement: - January 7, 2001 HRD letter: “This is to confirm that the Staff Development Division of the Human Resources Department could not identify any other suitable opening in the Fund for Ms. [“J”] when she was no longer able to perform verbatim reporting work for which she had been hired.” - HRD confirmed skills “are not transferable anywhere else, so she can not be moved.” *IMF Administrative Tribunal Reports, Vol. III — Judgment No. 2003-1 (MS. "J")* ### 44. Thereafter, on February 16, 2001 the Medical Advisor submitted to ### JUDGMENT NO. 2003-1 (MS. "J") ### Medical Advisor Addendum and Opinion (February 16, 2001) - Addendum noted diagnoses of tendonitis and myofascial pain syndrome and stated Ms. “J” “could return to work with modifications, but not as a verbatim reporter.” - Addendum emphasized findings of an “independent medical evaluation by a psychiatrist experienced in evaluating psychophysiologic disorders.” - Medical Advisor’s opinion (excerpted): - “Ms. [“J”] had a psychophysiologic reaction to her work as a verbatim transcriptionist, that culminated in patterned avoidance response to the use of her hands in pronation. Presumably, her work as a transcriptionist conflicted with her desire for what she perceived to be more challenging/interesting type of work. She indirectly coped with the conflict in a psychophysiological manner, resulting in a conversion reaction rendering her unable to perform repetitive functions. Nevertheless, [s]he has the requisite skills to perform tasks at the same or even higher level than her current position. For the reasons referenced by the independent evaluator, she does not permanently lack the residual functional capacity to perform tasks consistent with her education, training and experience. She is not totally or permanently incapacitated from performing tasks that the IMF might reasonably as[k] of her.” ### Administration Committee initial handling and decision - February 22, 2001: Secretary transmitted Ms. “J”’s Request for disability retirement, HRD employment-history summary, and the Medical Advisor’s Addendum to Committee members. - March 1, 2001: SRP Administration Committee met; Final Minutes summarized discussion: - Case involved carpal tunnel syndrome and severe tendonitis complicated by a psychological reaction. - Workers’ compensation administrator recommended possible retraining as a proofreader. - Rehabilitation specialist indicated capability to work in other fields but inability to return to former job. - Committee “agreed with the Medical Advisor that the person clearly did not meet the criteria for a disability pension.” - Committee asked whether the person could be found another job while undergoing retraining. - March 14, 2001: Committee Decision informed Ms. “J”: - “It has been found that your case does not meet the requirement of Section 4.3 (a) (i) of the Staff Retirement Plan, which states ‘such participant, while in contributory service, became totally incapacitated, mentally or physically for the performance of any duty with the Employer that he might reasonably be called upon to perform.’” - Decision included no reasons for the determination or avenues of recourse; advised Applicant to contact an HRD official “. . . to discuss other options.” ### Medical separation and HRD correspondence (May–June 2001) - Applicant’s account: HRD official informed her that medical separation was the only option as she had no transferable skills. - Fund’s account: discussed alternate placement possibility but asserted Applicant preferred retraining for external employment. - HRD notes (March 26, 2001): “[Ms. “J”] informed [HRD official] that she realizes she has no other skills apart from verbatim reporting – ideally she would like to continue her education and develop other skills so eventually she can work.” - May 18, 2001: Director of HRD notified Applicant: - “I regret to inform you that the Fund will be separating you for medical reasons effective July 21, 2001 under General Administrative Order 16 (GAO), Revision 5, which sets out the terms of separation for staff members for whom it has been determined that no disability pension is payable.” - Letter described financial terms of separation (to become effective March 4, 2002) as prescribed by GAO No. 16. - Applicant acknowledged reading the letter by signature dated May 29, 2001. - Same date: Second HRD letter explained reconsideration mechanics and that separation benefits would cease in favor of disability pension if Committee Decision were reversed; noted workers’ compensation claim would remain open. - Applicant signed resignation form effective March 4, 2002. - June 15, 2001: Applicant submitted application for review of Committee Decision. - March 5, 2002: Upon expiration of separation leave, Applicant placed on administrative leave without pay pending review outcome. ### Administrative review channels and rules - Cases arise through Rules of Procedure issued in 1999 by the SRP Administration Committee. - Rule VIII: Requestor may submit an Application for Review within ninety (90) days after receiving a Decision; reviews conducted in accordance with Rules IV, VI and VII; Committee shall notify Applicant of results within three months of receipt. - Rule X (Exhaustion of Administrative Review): - Channel deemed exhausted for filing with IMF Administrative Tribunal when: - (a) three months have elapsed since an Application for review was submitted and the results have not been notified; 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) conditions set out in Article V, Section 3(c) of the Statute have been met. - Review not exhausted until Pension Committee decision if matter is referred to Pension Committee. ### Applicant’s application for review and treating physicians’ submissions (June 15, 2001) - Applicant attached letters from three treating physicians and a functional capacity evaluation. - Rheumatologist (May 30, 2001): - Treated since October 1999 for bilateral wrist and forearm tendonitis, carpal tunnel syndrome and fibromyalgia. - Opinion: “It is my medical opinion that Ms. [“J”] will never be able to return to Verbatim Reporting. . . . I am hopeful that she will be able to return to some basic typing in a limited capacity when resolution of her current condition occurs. The time of that resolution is indeterminate.” - Pain specialist (May 30, 2001): - Recorded persistent pain in forearms and hands and symptoms “. . . present[ing] a picture of fibromyalgia syndrome.” - Observed: “Despite medical treatment, she still suffers from a substantial amount of pain when she engages in even light to moderate activity requiring repetitive usage of her wrists and hands. . . . As such, there is no way she could continue work as a verbatim reporter. Any keyboard work whatsoever would have to be severely limited.” - Treating psychiatrist (May 31, 2001): - Reported anxiety, depressive thoughts, tearfulness, helplessness, dysphoric mood and constant preoccupation about professional and personal future. - Concluded Applicant was responding successfully to psychiatric treatment. ### Additional medical review by Committee-appointed experts - Committee engaged three reviewing physicians: a rheumatologist, an orthopedist, and a psychiatrist (neuropsychiatric medicine and occupational psychiatry). - Reviewing rheumatologist (November 4, 2001): - After examining records of six physicians and a physical therapist, characterized divide: - “One camp believes that Ms. [“J”] has acute-onset carpal tunnel syndrome, overuse syndrome, and secondary fibromyalgia. The other group believes that Ms. [“J”] has psychogenic rheumatism with a component of conversion reaction.” - Opined that test results showed no evidence of carpal tunnel syndrome. - Diagnoses: fibromyalgia “equivocal”; at most myofascial pain syndrome; evidence of overuse syndrome associated with tendonitis. - Functional conclusions: - Disability continues regarding the use of her hands; computer use exacerbates symptoms. - Can do non-repetitive activities with her hands. - Lifting capability limited to light objects. - Can travel to and from a work environment without difficulty. - Reviewing orthopedist (February 5, 2002): - Based on diagnostic studies, concluded Ms. “J” does not have carpal tunnel syndrome. - Employability perspective: - “She is clearly capable of working, especially in occupations that do not require repetitive use of her hands. She could certainly do such things as communicate over the phone, personal interaction, limited writing, and minimal keyboard work, etc. She is certainly employable, but perhaps not in the same kind of occupation which requires extensive keyboard and repetitive use of her hands.” - Reviewing psychiatrist (initial report September 4, 2001; detailed report March 21, 2002): - Initially reported that diagnosis of fibromyalgia was “not tenable,” and presentation suggested a psychogenic origin to pain symptoms. - After psychophysiologic evaluation including psychological testing and physical examination, concluded: - Diagnosis of undifferentiated Somatoform Disorder, possible Conversion Disorder as most logical diagnosis. - “I do not believe the patient is permanently disabled, as I believe that continued psychotherapy and the use of psychotropic medication may well ameliorate her condition to the point where she is able to once again resume a productive career as a verbatim reporter.” ### Applicant’s response to Medical Advisor and factual assertions (Memorandum March 8, 2002) - Applicant vigorously rebutted Medical Advisor’s hypothesis that her condition was psychophysiologic or motivated by occupational boredom: - Denied feeling “overworked.” - Stated avoidance of pronation was because such use was painful, not due to a “phobia.” - Denied lack of interest in returning to verbatim reporting; affirmed finding the work challenging and interesting. - Asserted, “Due to my work-related injury, I am permanently unable to return to verbatim reporting.” - Asserted keen interest in doing whatever was necessary to fill another position in the Fund, but that it had been determined she “could not perform any other task in the IMF.” - Submitted APRs to illustrate commitment and competence as a verbatim reporter. *IMF Administrative Tribunal, Judgment No. 2003-1 (Ms. "J").* ### 59. In particular, Ms. “J” challenged the conclusion that she had a “‘con- ### JUDGMENT NO. 2003-1 (MS. "J") ### Applicant’s responses to medical conclusions and permanency concerns - Ms. “J” disputed the Medical Advisor’s characterization that she had a “conversion syndrome” causing “a phobic-like aversion to use of hands in pronation.” (Medical Advisor’s February 16, 2001 Addendum, p.1). - Applicant’s explanation of avoidance: - “My avoidance of using my hands in pronation was not because of a phobia, but because it hurt. As a result of physical therapy, pain medication, my daily stretching and strengthening exercises, et cetera, my pain levels have become more manageable, and I can do more things with my hands in this position.” - Applicant’s rebuttal to the suggestion that “most of Ms. [‘J’]’s symptoms seem to have abated”: - “Still, regular activities such as bathing, dressing, and cleaning the house can cause an instant flare-up of my condition. There is no time when I am not aware that there is something wrong with my hands. As I said, my fingers always feel stiff, and they as well as my wrists, frequently ache, which intensifies when I engage in certain repetitive activities.” - On vocational interest and psychological adjustment: - “Coming to terms with the fact that my verbatim reporting career was over has been a long and difficult process. . . . Gradually, through counseling and antidepressant treatment, I have been able to accept the reality of my situation and make new goals rather than focus on what I can no longer do. . . . [The work was] extremely challenging, particularly in this international environment.” - On permanency and future employability: - “My main concern is that I do not know whether my condition will remain stable, continue to improve, or deteriorate. Only time will tell. Therefore, in my appeal letter, I requested access to a disability pension until I was able to support myself. I am optimistic that this day will come, but I cannot see it in my short-term future. Another fear is that, even with qualifications, I will not be able to secure a position because of my existing condition.” ### Medical Advisor’s final report to the SRP Administration Committee (April 25, 2002) - Methodology and weighting: - The Medical Advisor stated he “accredited some of the submitted information differently” and “accredited the experience, objectivity and clarity of expression of the physician reviewers in evaluating this complex case.” - He “accredited the two independent psychiatric examiners more than other practitioner’s conclusionary statements regarding the cause of [Ms. ‘J’]’s impairments.” - The report summarized findings of two reviewing psychiatrists and a reviewing rheumatologist; it did not mention the reviewing orthopedist nor Ms. “J”’s treating physicians. - Medical Advisor’s conclusion (verbatim): - “A psychophysiologic reaction to her work as a verbatim transcriptionist culminated in a patterned avoidance response to pronating her hands, rendering her unable to perform repetitive functions. Although her hand use is presently impaired, she has the requisite skills to perform tasks at the same level as her current position. She does not permanently lack the residual functional capacity to perform tasks consistent with her education, training and experience. She is not totally or permanently incapacitated from performing tasks that the IMF might reasonably ask of her. Repetitive hand use at this time, without directed psychotherapy, would likely exacerbate her hand symptoms. Therefore, she currently lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions.” - Other observations by Medical Advisor summarized to the Committee: - Expectation that “she could improve over time.” - “No objective finding of physical incapacity.” - Applicant suffered from “tendonitis but nothing more severe,” and the psychosomatic component should respond to treatment. ### HRD memorandum on alternative positions and voice recognition (May 1, 2002) - HRD Staff Development Division could not identify other suitable Fund positions for Ms. “J” when carpal tunnel syndrome made verbatim reporting impossible: “She had no other skills, not requiring the use of the computer or her hands, that would have made it possible to accommodate in [sic] her in another position.” - Voice recognition software: - The possibility of voice recognition software was explored with Applicant’s former department and received a negative response for use in verbatim reporting. - The memorandum noted Applicant’s observation that voice recognition is a poor substitute for manual typing and editing on screen and is not readily used by other employers. - HRD observed Applicant “realized she had no other skills apart from verbatim reporting, and that ideally she would like to continue her education and develop other skills so she could eventually work.” ### Administration Committee’s review process and decision (May 2002) - Documentation considered by Committee (transmitted May 2, 2002) included: - (a) Applicant’s original Request for disability retirement, Medical Advisor’s original opinion, Applicant’s response and application for review; - (b) Staff Development Division documentation on job and alternate-job efforts; - (c) list of jobs developed by the Compensation and Benefits Policy Division; - (d) vocational counselor reports retained by the Claim Administrator; - (e) reports of reviewing rheumatologist, orthopedist and psychiatrist; and - (f) Medical Advisor’s final report. - Compensation and Benefits Policy Division (undated list) assessment: - “The Human Resources Department has determined that Ms. [‘J’] would be considered qualified to perform the following jobs with a reasonable amount of training and accommodation, including the use of voice activated software, and that she would be eligible to apply for any such vacancies were they to occur.” - Listed jobs: Editorial Officer; Executive Board and Member Services Officer; Public Affairs Officer; Information Officer; Translation Editorial Officer; and Publications Officer. - Committee discussion (May 9, 2002): - Discrepancies among treating and reviewing physicians were noted. - Compensation and Benefits Policy Division representative asserted reasonable accommodation could be made and voice recognition software would be obtained for the jobs. - Positions were identified at Applicant’s grade level and said to require minimal repetitive hand motion. - Proofreader position excluded as lower grade and required foreign language proficiency Applicant lacked. - Legal Representative noted Applicant would have to compete through the regular vacancy process but could not be disqualified for requiring reasonable accommodation. - Legal Representative and Medical Advisor viewed Applicant’s community college enrollment as relevant to ability to perform duties; Medical Advisor observed attending school involved normal physical activities and deadlines. - Administration Committee’s Decision on Review (decision letter dated May 17, 2002; Applicant indicated receipt May 20, 2002): - Stated the relevant SRP test: whether there are duties the Fund could reasonably ask the employee to perform, taking into account education and reasonable accommodations or additional training; “The test is not whether vacant positions exist, but whether the participant has the capacity to perform duties that she might reasonably be called upon to perform.” - Noted at Applicant’s grade level “there were a number of positions (see Attachment) which would require little use of the computer and where voice activated software could be employed. This software is currently available in the Fund. Consequently, the Committee concluded that the Fund does have positions in which you could perform the required duties in your condition.” - Committee’s conclusion (verbatim): - “Taking all of the circumstances into account, the Committee concluded that while your condition is likely to be permanent, it is not disabling to the extent that you are totally incapacitated from performing any duties that the Fund might call upon you to perform. Your condition is treatable and could be accommodated by the Fund if you were assigned duties such as those required in the positions listed in the attachment.” - Noted Applicant had a workers’ compensation claim determined by the Claim Administrator to be compensable as a “permanent, partial impairment,” and that settlement was suspended pending appeal on SRP “permanent, total disability.” - Procedural note: - Applicant filed her Application with the Administrative Tribunal on August 20, 2002. ### Parties’ principal contentions — Applicant (summarized) - Applicant contends she is “totally and permanently disabled” within SRP meaning and that the Administration Committee abused its discretion. - Key legal/medical contentions: - Disability must be determined in relation to the work normally performed by the employee. - Medical evidence supports that disability deprives Applicant of use of hands for specific trained/employed functions and similar Fund functions. - Applicant’s skills are not readily transferable to other work the Fund has available. - Respondent erred by claiming positions existed without sound analysis or factual matching of Applicant’s education and skills to those positions. - SRP requirement that disability be “likely to be permanent” should mean reasonable medical certainty that disability is continuing and no improvement can be expected. - Denial of due process: Medical Advisor did not examine Applicant, was not subject to oral testimony or cross-examination, Medical Advisor’s opinion delivered after Committee decision, Committee acted on incomplete record, Decision delayed almost a year, and decision-making affected by conflicts of interest. - Denial of rights under Fund’s medical separation policy: no suitable position sought, no notice of right to object to proposed medical separation, and no alternative position mentioned to Applicant. - Workers’ compensation claim is not ripe for adjudication. - Standard of review: GAO No. 31 not applicable; appropriate standard under Article III of the Tribunal’s Statute. - Disability should be judged in relation to earning capacity as SRP Section 4.3(d) links discontinuance of disability pension to regaining earning capacity. - Relief sought: - Grant disability pension retroactive to March 5, 2002; - Two years net salary as compensation for mental suffering caused by Respondent’s repeated unfair treatment; and - Legal costs. ### Parties’ principal contentions — Respondent (summarized) - Committee correctly applied SRP criteria for disability retirement; decision was not arbitrary or capricious. - SRP does not require disability be determined solely by reference to requirements of employee’s current position; reasonableness standard must consider education and abilities and not actual vacancy existence. - Medical evidence weight favored that Applicant had a repetitive use injury likely preventing future verbatim reporting but that she was not totally or permanently incapacitated. - Disability retirement is intended for extreme medical conditions; Applicant does not meet this high standard. Applicant’s college attendance and use of voice-activated software demonstrate capacity to perform functions with accommodations. - Procedural arguments: - Applicant was not denied due process; Committee acted according to Rules of Procedure and is not required to hold oral hearings or to review treating physicians’ underlying records unless it deems necessary. - Committee properly relied on its Medical Advisor’s expert advice and on findings of three independent medical evaluators; no basis shown that Medical Advisor’s opinion was arbitrary. - Jurisdictional contention: - Tribunal lacks jurisdiction over challenge to medical separation because Applicant failed to exhaust administrative review and separation decision was not adverse given Applicant requested medical separation. *Judgment No. 2003-1 (Ms. "J"), IMF Administrative Tribunal Reports, Vol. III* ### 8. The Amicus Curiae Brief confuses the Administrative Tribunal’s ### 8. The Amicus Curiae Brief confuses the Administrative Tribunal’s ### Amicus Curiae brief v. Tribunal’s scope and standard of review - The Amicus Curiae Brief conflates the Tribunal’s “scope of review,” which is de novo, with its “standard of review” as set forth in Article III of the Statute. - Article III of the Tribunal’s Statute governs the Tribunal’s standard of review. ### SRP Administration Committee determinations and deference - The SRP Administration Committee’s determination on eligibility for disability retirement is characterized as a discretionary judgment. - International administrative tribunals are to accord deference to such discretionary judgments absent a showing that the decision is: - arbitrary, - capricious, - discriminatory, - improperly motivated, - based on an error of law or fact, or - procedurally defective. ### Interpretation of SRP Section 4.3(a) - The Amicus Curiae’s interpretation of SRP Section 4.3(a) is asserted to be inconsistent with the Plan’s language and intent. - The provision does not require finding the applicant incapacitated from performing the duties for which he had been trained or was carrying out at the time of the incapacity. - The Administration Committee did not interpret the standard to mean that the applicant could be asked to perform “lesser” duties; rather, the Committee examined whether the Applicant could perform other functions consistent with her qualifications and salary level. ### Principal views of the Amicus Curiae (Staff Association representatives) - The Administrative Tribunal should not apply an “arbitrary or capricious” standard of review as suggested by Respondent’s pleadings; Article III governs. - Different standards of review apply to employment disputes heard by the Fund’s Grievance Committee and those involving denial of disability retirement by the SRP Administration Committee. - The facts and legal questions in this case lend themselves to de novo review by the Tribunal because Plan interpretation involves legal questions and the factual issues are reflected in a written record accessible to the Tribunal. - SRP forms part of the employment contract and its provisions should be interpreted in the light most favorable to participants. - The reasonableness standard of SRP Section 4.3(a) must be interpreted in relation to the duties the participant was performing at the time the incapacity occurred, not future duties possible after rehabilitation or training. - SRP Section 4.3(d), concerning discontinuance when the participant “. . . has regained the earning capacity which he had before such incapacity. . . ,” supports determining disability relative to duties at the time the incapacity arose rather than after rehabilitation, training and accommodation. - Due process requires the Administration Committee to review records of an applicant’s treating physicians so it may determine whether the Medical Advisor acted improperly or arbitrarily. ### The decision(s) under review — contested acts identified by Applicant - Applicant’s Form of Application identifies two contested decisions: - denial of disability retirement, and - “involuntary separation on medical grounds.” - Applicant predominately challenges the SRP Administration Committee’s denial of her Request for disability retirement and also alleges a due process failure concerning medical separation. - Applicant’s pleadings discuss a workers’ compensation claim but concede it is “not yet ripe for adjudication.” ### Respondent’s position and procedural posture - Respondent requests dismissal as irreceivable of all issues relating to medical separation and workers’ compensation on the ground that Applicant failed to exhaust administrative remedies with respect to these matters. - Respondent asserts that the Claim Administrator made a finding of permanent, partial loss of function compensable under the Fund’s workers’ compensation policy, but that negotiation of a lump-sum settlement was suspended pending resolution of Applicant’s Request for disability retirement under the SRP based on permanent, total disability. - Respondent states Ms. “J” received medical and leave benefits pursuant to the workers’ compensation policy and that the Claim Administrator’s evaluation under GAO No. 20, Section 5.01.2 was suspended pending the disability retirement determination. ### Dispute over medical separation procedures - Applicant contends the conditions precedent to medical separation under GAO No. 16 were not met; those conditions include either a staff request for separation or a Fund-initiated finding (with procedural safeguards) that separation should occur. - Applicant contends her case fell within the Fund-initiated category and, under Section 2 of GAO No. 13, Annex I, she should have been notified, given opportunity to object, and the matter referred to a panel of medical experts; she also contends the Fund should have sought other suitable positions per GAO No. 11. - Applicant alleges the Fund failed to comply and instead notified her in May 2001 that the Fund “. . . regret[s] to inform you that the Fund will be separating you for medical reasons. . . .” - Respondent maintains the separation was at Applicant’s initiative, that she chose not to pursue alternative Fund work and elected retraining for another career, and that the cited procedures were therefore not required. - Respondent contends it sought alternative placement and that it was “agreed” Applicant would be separated pursuant to GAO No. 13, Annex I and GAO No. 16. - The Fund argues it is inconsistent for Applicant to seek disability retirement while challenging medical separation because an application for disability retirement purportedly subsumes a request for medical separation on the basis of total and permanent inability to work. ### Jurisdictional and exhaustion framework applied by the Tribunal - Article II, Section 1 of the Tribunal’s Statute confines jurisdiction ratione materiae to challenges to the legality of an administrative act of the Fund, or of an administrative act arising under a benefit plan maintained by the Fund, adversely affecting the applicant. - Article V, Section 1 requires exhaustion of all available channels of administrative review before filing with the Tribunal when the Fund has established such channels. - The Tribunal has repeatedly emphasized the importance of the exhaustion requirement as the Tribunal is a forum of last resort. - Precedents cited: - Ms. “Y”, IMFAT Judgment No. 1998-1: the Tribunal granted summary dismissal where exhaustion requirements of Article V were not met and resolved ambiguity in favor of requiring Grievance Committee review where available. - Ms. “Y” (No. 2), IMFAT Judgment No. 2002-2: to determine matters under review the Tribunal must identify the administrative act(s) subject to prior administrative review; underlying claims not timely pursued through prescribed procedures could not be reviewed. - Estate of Mr. “D”, IMFAT Judgment No. 2001-1: exceptional circumstances can excuse failure to initiate timely administrative review, but such exceptions should not be lightly found. ### Tribunal’s assessment of Applicant’s failure to exhaust remedies - There is sympathy for Applicant’s contention that intersecting procedures (medical separation, workers’ compensation, disability pension) could make it unclear that Grievance Committee exhaustion was required. - The Tribunal cites the Ombudsperson’s observation about the dispersion and complexity of GAOs, Staff Bulletins, and Administrative Circulars, and the difficulty staff may face in knowing applicable policies and procedures. - Despite this sympathy, Applicant did not attempt to exhaust remedies in the Grievance Committee; she accepted in full the financial benefit of medical separation under GAO No. 16 and does not seek reinstatement. - Given Article V and Tribunal jurisprudence, the Tribunal finds it difficult to see a material interest for Applicant in challenging separation procedures at this stage. - Accordingly, the Tribunal confines its consideration to Applicant’s challenge to the SRP Administration Committee’s decision to deny her application for disability retirement. *IMF Administrative Tribunal Reports, Vol. III — Judgment No. 2003-1 (MS. "J")* ### 90. The Amicus Curiae Brief of the Staff Association Committee draws ### The Amicus Curiae Brief of the Staff Association Committee draws ### Standard of review distinguished from channels of review - The applicable statutory text: second sentence of Article III of the Statute of the Administrative Tribunal requires application of “the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.” - GAO No. 31 is the constitutive instrument of the Fund’s Grievance Committee and, at Section 5, provides the Grievance Committee’s standard of review; GAO No. 31 does not govern the Administrative Tribunal’s standard of review (paras. 91–92). - The Tribunal’s standard of review (relationship between Tribunal and the contested administrative act) is distinct from the Tribunal’s authority to make findings of fact and conclusions of law (sometimes called de novo review or “scope of review”) and may be referred to interchangeably in literature, but here “standard of review” is used to mean the Tribunal’s relation to the contested administrative act (paras. 93–94). - The Administrative Tribunal makes independent findings of fact and law and is not limited to functioning as an appellate body from the Grievance Committee; it decides each case de novo and is not bound by the Grievance Committee’s reasoning or recommendations (paras. 95–96; citing IMFAT Judgments No. 1996-1 and No. 1999-2). - A Grievance Committee decision is not itself an “administrative act” under Article II and thus is not directly reviewable by the Tribunal; the Grievance Committee makes recommendations to the Managing Director, who takes the final administrative decision (para. 97). - The SRP Administration Committee differs from the Grievance Committee: it both takes the administrative decision (subject to Tribunal review) and supplies a channel for exhaustion of remedies when it reconsiders its own decision under Rule VIII (paras. 98–99). ### The IMFAT’s understanding of the standard of review - The standard of review defines the degree of deference the Tribunal accords to the decision maker and represents a legal presumption about where the risk of erroneous judgment should lie (para. 99). - The degree of deference may vary according to: - the nature of the decision under review, - the grounds on which it is contested, and - the authority or expertise vested in the original decision maker (para. 99). - The core dispute between parties: - Respondent emphasizes an “arbitrary or capricious” standard for discretionary managerial decisions and defends significant deference to the SRP Administration Committee (para. 100; footnote 25). - Amicus Curiae contends for deeper scrutiny because interpretation and application of the Staff Retirement Plan involve legal questions and because the Administration Committee’s proceedings lacked credibility determinations based on oral testimony (para. 100). - Applicant proposes differentiating the Tribunal’s standard of review for substantive errors versus procedural errors, arguing that concepts like “abuse of power” apply to substantive violations while “arbitrary, capricious, abuse of discretion” may better fit procedural due process failures (para. 101). ### Legislative history and IMFAT jurisprudence guiding the standard - Sources the Tribunal consults in resolving the appropriate standard: - text of Article III requiring application of “generally recognized principles of international administrative law concerning judicial review of administrative acts”; - the published Commentary on the Statute (Report of the Executive Board); - IMFAT jurisprudence; - jurisprudence of other international administrative tribunals (para. 102). - The Commentary emphasizes: - the Tribunal must adhere to generally recognized principles for judicial review of administrative acts, especially in contexts of discretionary power (para. 104). - the Tribunal’s standards of review should not exceed those applied by other tribunals; limitations exist particularly for review of regulatory decisions and policy decisions by the Executive Board (para. 104). - for individual managerial-discretion decisions, 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” (para. 104). - determinations of professional qualifications and similar managerial assessments are managerial, not judicial, responsibilities (para. 104). - IMFAT jurisprudence confirms deference to managerial discretion, especially for regulatory decisions and Executive Board policy decisions, while retaining competence to review lawfulness of challenged administrative acts (para. 105; cited examples include IMFAT Judgments No. 2002-1 and No. 2002-3). *IMF Administrative Tribunal Judgment No. 2003-1 (MS. "J")* ### 106. In cases involving the review of individual decisions taken in the ### imfat-3 - 106. In cases involving the review of individual decisions taken in the ### Standard of review for managerial discretion - The Administrative Tribunal invokes the standard in the Statutory Commentary: discretionary decisions cannot be overturned unless they are shown to be "arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures." (Report of the Executive Board, p. 19.) (para. 106) - Respondent urges application of that standard in the present case. (para. 106) - When the Tribunal reviews whether an administrative act is "arbitrary or capricious," it applies its least rigorous level of scrutiny. (para. 109) - The Tribunal requires that conclusions "must not be arbitrary or capricious, but rather must be reasonably supported by evidence." (Ms. “Y” (No. 2), para. 63) (para. 109) - Example: in Mr. “V” the Fund’s limitation of distribution of a report was upheld because the Fund had "explained and documented its rationale." (para. 96) (para. 109) ### Composite nature of the standard of review - The standard for reviewing individual decisions involving managerial discretion "comprehends a number of different factors," and its operation may emphasize different factors depending on the nature of the decision and the grounds of challenge. (para. 107) - Some factors in the standard contemplate stricter scrutiny than others; the Tribunal’s decisions illustrate varying emphasis on: - errors of law, - improper motivation (e.g., retaliation), - abuse of discretion, - procedural fairness. (paras. 107–108) ### Illustrative case law and how factors are applied - Ms. “C” (IMFAT Judgment No. 1997-1) - Applicant challenged non-conversion from fixed-term to regular staff, alleging retaliatory motive for complaints of alleged sexual harassment. (para. 108) - Tribunal concluded the decision was not retaliatory (paras. 28, 41). (para. 108) - Tribunal deferred to management’s assessment that applicant had not met performance standards for conversion; found no abuse of discretion based on evidence of performance deficiencies. (paras. 36, 38, 41) (para. 108) - Tribunal found procedural irregularities in the performance assessment and awarded partial compensation. (paras. 41–44) (para. 108) - Mr. “P” (No. 2) (IMFAT Judgment No. 2001-2) - Tribunal examined whether the Administration Committee properly applied SRP Section 11.3 and the Rules; reviewed the "soundness" of the Committee’s decision and concluded the decision was "in error and must be rescinded." (paras. 119, 132, 144–145) (para. 115) - Tribunal noted the appellate authority under SRP Section 7.2 and Article II of the Tribunal’s Statute provides a required third-party remedy absent Managing Director review. (para. 114) - Ms. “Y” (No. 2) - Tribunal recognized limited measure of review for informal alternative dispute resolution processes that were "informal and did not provide for any contemporaneous record of proceedings"; depth of review is less than that of an appellate court reviewing trial court proceedings for error. (paras. 49, 65) (para. 110) - Mr. “G” and other precedents - Tribunal will not override policy choices of the Fund that are "rationally related to the mission and objectives of the Fund" when exercised as legislative/managerial authority. (para. 116) ### Nature of the decision-making process under review (discretionary vs quasi-judicial) - The Tribunal identifies two key differentiating factors for SRP Administration Committee decisions on disability retirement: 1. Functional character: construing and applying terms of the Staff Retirement Plan to facts more closely resembles a judicial act ("quasi-judicial") than a typical managerial act (e.g., transfers, classification and grading). (paras. 112, 117) - Quasi-judicial decisions require the decision maker to construe Plan provisions and apply them to particular factual circumstances. (paras. 112, 117) 2. Special appellate channel: decisions of the SRP Administration Committee are exclusively vested in the Committee and are not reviewed by the Managing Director; they are subject only to direct appeal (following reconsideration by the Committee) to the Administrative Tribunal. (para. 113) - SRP Section 7.2 vests the Administration Committee with exclusive rights "to interpret the Plan; to determine whether any person is or was a staff member, participant, or retired participant; to direct the employer to make disbursements from the Retirement Fund in payment of benefits under the Plan; to determine whether any person has a right to any benefit hereunder and, if so, the amount thereof; and to determine any question arising hereunder ... and its decision or action in respect thereof shall be conclusive and binding upon all persons interested, subject to appeal in accordance with the procedures of the Administrative Tribunal." (SRP Section 7.2 quoted) (para. 113) - A parallel provision vests the Pension Committee with policy-making authority subject to direct appeal to the Administrative Tribunal. (para. 113, footnote 28) ### Tribunal’s characterization of SRP Administration Committee decisions - The Tribunal concludes that decisions on disability retirement by the SRP Administration Committee differ from managerial discretion because: - They are "quasi-judicial" in function, requiring interpretation and application of Plan terms to individual facts. (para. 117) - They are made by an entity vested with exclusive authority under the Plan and reviewable only by direct appeal to the Administrative Tribunal, not by the Managing Director. (paras. 113, 117) ### International administrative jurisprudence on discretionary vs quasi-judicial powers - Respondent cites In re Duran, ILOAT Judgment No. 375 (1979) for the proposition that determination of disability eligibility is discretionary and that the Tribunal will not substitute its judgment for that of medical experts unless the judgment is "wholly unreasonable or based on clearly mistaken conclusions." (para. 119) - Close reading of Duran shows ILOAT conducted a detailed review of the evidence to decide whether the Director’s decision was reasonable given the total material, concluding it was not unreasonable in the absence of clear contrary evidence. (paras. 120, 16) (para. 120) - Commentary (C.F. Amerasinghe, The Law of the International Civil Service (1994), Vol. I, p. 267) identifies a category of "quasi-judicial powers" whose decisions, although framed with discretionary criteria, are regarded as subject to total judicial control and may be reviewed de novo by tribunals acting as courts of appeal; many tribunals regard disciplinary powers as falling into this category. (para. 121) *Judgment No. 2003-1 (Ms. "J"), IMF Administrative Tribunal Reports, Vol. III.* ### 122. In Kiwanuka v. Secretary General of the United Nations, UNAT Judge- ### imfat-3 - 122. In Kiwanuka v. Secretary General of the United Nations, UNAT Judge- ### Quasi-judicial character of discretionary decisions - UNAT in Kiwanuka (Judgment No. 941 (1999)) recognized that a challenged decision may involve the exercise of discretion that is of a quasi-judicial character. - The Tribunal stated: “IV. Clearly the Tribunal takes the view that the imposition of disciplinary sanctions involves the exercise of a discretionary power by the Adminis­tration. It further recognizes that, unlike other discretionary powers, such as transferring and terminating services, it is also a special exercise of quasi-judicial power. For these reasons the process of review exercised by the Tribunal is of a particular nature. . . .” ### Standard and scope of review for disciplinary decisions (UNAT formulation) - UNAT described its review in disciplinary cases as examining: - (i) whether the facts on which the disciplinary measures were based have been established; - (ii) whether the established facts legally amount to misconduct or serious misconduct; - (iii) whether there has been any substantive irregularity (e.g. omission of facts or consideration of irrelevant facts); - (iv) whether there has been any procedural irregularity; - (v) whether there was an improper motive or abuse of purpose; - (vi) whether the sanction is legal; - (vii) whether the sanction imposed was disproportionate to the offence; - (viii) and, as in the case of discretionary powers in general, whether there has been arbitrariness. - UNAT further explained: - “V. In regard to (i) in paragraph III above, the Tribunal makes a judgement based on its examination of the facts. In regard to (ii) in paragraph III above, the Tribunal judges whether the characterization of misconduct or serious misconduct is, in its opinion, appropriate, which is a matter of law.” ### Broader application of heightened scrutiny beyond disciplinary sanctions - Observed principle: “Some discretionary powers amount in fact to the exercise of a quasi-judicial function by the administration, as is typically the case of the adoption of disciplinary measures. The standard of review generally becomes more strict in this connection. . . .” - Where special appellate jurisdiction exists (e.g., decisions of Pension Benefits Administration Committee with no internal remedies), the Tribunal’s jurisdiction is “both exceptional and broader than the review of managerial discretion.” In such cases, the Tribunal examines elements of quasi-judicial review and also whether conditions required by the Staff Retirement Plan for granting benefits were met and whether the PBAC correctly interpreted the applicable law. ### WBAT jurisprudence on disability retirement (analogous practice) - WBAT’s approach to review varies with the nature of the case: - For matters exclusively within managerial discretion, review limited to whether decisions are arbitrary, discriminatory, improperly motivated, based on error of fact, carried out in violation of a fair and reasonable procedure or tainted by abuse of power. - For disciplinary measures and cases under special appellate jurisdiction, the Tribunal may review merits of the decision and exercise broader powers of review in relation to both facts and law. - In John Courtney (No. 2) v. IBRD, WBAT Decision No. 153 (1996): - PBAC decisions under Section 10.2(f) of the Staff Retirement Plan are final but subject to appeal to the Tribunal when no other internal remedies exist. - The Tribunal may examine: - (i) the existence of the facts, - (ii) whether the conditions required by the Staff Retirement Plan for granting the benefits requested were met or not, - (iii) whether the PBAC in taking the decision appealed has correctly interpreted the applicable law, and - (iv) whether the requirements of due process have been observed. - WBAT outcomes under the same standard: - Courtney (No. 2): PBAC denial upheld. - Ahlam Shenouda v. IBRD, WBAT Decision No. 177 (1997): Tribunal overruled PBAC and awarded disability retirement where the Tribunal concluded PBAC’s result “is contrary to the clear weight of the evidence.” - WBAT noted the Tribunal can review independently the written opinions of examining physicians while giving some weight to the Medical Advisor. - A v. IBRD, WBAT Decision No. 182 (1997): WBAT reversed PBAC where medical evidence showed applicant could not perform any duty comparable to former position. ### Standard of Review for Disability Retirement Cases (Administrative Tribunal formulation) - The Tribunal sets the following standard to review a denial of disability retirement by the Administration Committee of the Staff Retirement Plan: 1. Did the SRP Administration Committee correctly interpret the requirements of SRP Section 4.3 and soundly apply them to the facts of the case, or was the Committee’s decision based on an error of law or fact? 2. Was the Committee’s decision taken in accordance with fair and reasonable procedures? 3. Was the Committee’s decision in any respect arbitrary, capricious, discriminatory or improperly motivated? ### SRP Section 4.3(a) (text preserved in full) - SRP Section 4.3(a) provides in its entirety: “4. 3 Disabilit y Retirement (a) A participant in contributory service shall be retired on a disability pension before his normal retirement date on the first day of a calendar month not less than 30 nor more than 120 days immediately following receipt by the Administration Committee of written application therefor by the participant or the Employer; on the condition that the Pension Committee must find, on the recommendation of the Administration Committee and the certification of a physician or physicians designated by the Administration Committee, that: (i) such participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform; (ii) such incapacity is likely to be permanent; and (iii) such participant should be retired.” ### Application to Ms. “J” — core issues and factual summary - Two essential qualifications under SRP Section 4.3(a): - 1) Applicant is “. . . totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform,” and - 2) the incapacity is “likely to be permanent.” - Factual medical summary for Ms. “J”: - Medical reports and treating physicians’ notes (rheumatologist: October 1999–May 2000; pain specialist: June–July 2000) support that Ms. “J” engaged in intensive medication and therapies and continued to report severe pain in her hands and arms. - It is undisputed that for years following the initial injury in September 1999, Ms. “J” has been unable to use her hands and arms in repetitive motion required for a verbatim reporter. - The Committee’s Medical Advisor concluded that Ms. “J” “. . . currently lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions.” He also concluded that she “. . . has the requisite skills to perform tasks at the same level as her current position [and] does not permanently lack the residual functional capacity to perform tasks consistent with her education, training and experience.” - Respondent’s framing and Administration Committee’s test: - Respondent asks whether Applicant’s education and cognitive abilities could be utilized elsewhere in the Fund without requiring repetitive hand use, concluding reasonable additional training and accommodation could allow reassignment. - Administration Committee’s Decision on Review, May 17, 2002, stated the relevant test: “. . . the relevant test is whether there are duties that the Fund could reasonably ask the employee to perform, taking into account his/her education and reasonable accommodations or additional training. The test is not whether vacant positions exist, but whether the participant has the capacity to perform duties that she might reasonably be called upon to perform.” (Emphasis supplied.) - The Committee applied this test and concluded the Fund had positions in which Ms. “J” could perform required duties. ### Legal and factual questions identified for Tribunal consideration - Issues raised by Respondent’s position and Committee’s test: - Must duties the applicant could be asked to perform relate to duties the staff member performed when incapacity arose? - May duties require additional training or accommodation? If so, what is “reasonable” training and who provides it? - Is a current vacancy required for duties the Fund might reasonably call upon the applicant to perform? - Are the positions identified for Ms. “J” ones she may reasonably be called upon to perform? - What is the significance of Applicant’s separation for medical reasons under GAO No.16 and HRD’s finding that Applicant had no transferable skills? - Parties’ positions: - Applicant (and Amicus Curiae): incapacitation should be determined in relation to work normally performed; medical evidence supports inability to use hands for functions trained and employed for, and for all similar functions available with the Fund. - Respondent: Plan does not require incapacity from duties for which applicant was trained; additional training and accommodation may be considered in assessing duties the employer reasonably could ask the employee to perform. ### Comparative jurisprudence guidance (WBAT) - WBAT suggests applicants need not be able to perform exactly the same functions previously done but duties should be similar or comparable to those previously performed. - Courtney (No. 2): “The standard of reasonableness does not require that the participant should continue to able to do exactly what he had been doing. If a staff member, for example, is unfit to travel but is capable of performing duties at headquarters which are compatible both with his experience and the Bank’s needs, then it cannot be concluded that he is totally and permanently incapacitated for any duty that he is reasonably called upon to perform and the requirement of the Retirement Plan is not met.” (Emphasis supplied.) - A, para. 12–13: Test is whether applicant is capable, notwithstanding illness, of performing other duties the Employer may reasonably require that are compatible with experience and the Bank’s needs; WBAT reversed PBAC where medical record showed applicant could not perform any duty comparable to former position and was unlikely to function effectively in another similar job. *Source: IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. III, JUDGMENT NO. 2003-1 (MS. "J").* ### 138. Accordingly, the standard that appears to be applied by the WBAT ### imfat-3 - 138. ### Standard applied by the WBAT and scope of "reasonable" duties - The standard applied by the WBAT: to be “reasonable” the duties must be compatible with the staff member’s experience and the organization’s needs. - The WBAT did not expressly address whether duties that a staff member might reasonably be called upon to perform could include those involving some additional training. ### Applicant’s contentions regarding matching and inducement of error - Applicant contends Respondent induced error in the Administration Committee by claiming, without sound analysis or factual data, that there were positions she was qualified to fill and that there was no actual matching of Applicant’s education and skills to the positions. - Applicant’s statement (November 22, 2002) asserts: - Although positions are at the same grade level, it is implausible the Fund would expect her to perform them. - One reason for her separation was that she had no transferable skills. - Selection of alternative positions based solely on the same grade level does not account for educational requirements and experience that would clearly exceed “some training.” - The verbatim reporting requirement: a two-year associate diploma in court reporting with proficiency and on-the-job experience. - She does not have a university degree or experience in the positions identified. - “The Legal Representative indicated that the participant would have to compete for the position according to the Fund’s standard vacancy application process.” (p. 2 [of Final Minutes of Administration Committee, May 9, 2002]) - Given the caliber of candidates, “there is no way the Fund would realistically consider me capable of performing any of the positions put forward.” ### Tribunal conclusion on reasonableness of expecting Applicant to perform listed duties - The Administrative Tribunal concludes: - Given Ms. “J”’s highly specialized but limited training and experience, it would not be reasonable to expect the Fund to ask her to perform duties of the positions identified by the Compensation and Benefits Policy Division of the Fund’s Human Resources Department: Editorial Officer, Executive Board and Member Services Officer, Public Affairs Officer, Information Officer, Translation Editorial Officer, or Publications Officer. - It is not clear that Ms. “J” would be qualified to perform any of these jobs with a reasonable amount of additional training and accommodation. - It is unclear whether the Fund contemplated providing the requisite training and what accommodation could be made. ### Job standards and educational qualifications cited - Observation: job standards for listed positions contemplate candidates whose background differs significantly from one qualified as a Verbatim Reporting Officer (VRO). - VRO: college degree not required. - Other positions: qualifications generally include educational development “typically acquired through the completion of an advanced university degree,” although the requirement may include or be supplemented by work experience. - Editorial Officer (Grade A9) — quoted qualifications: - Training and Experience: “For Grade A9, educational development typically acquired through the completion of an advanced university degree in a field related to the editorial officer’s work, or equivalent, including and/or supplemented by work experience, is required. A university degree in economics or equivalent experience is desirable.” - Knowledge, Skills and Abilities: “For Grade A9, thorough knowledge of Fund editing standards. Specialized knowledge of writing and editing, and understanding of Fund policies and operations. Thorough knowledge of editorial techniques and practices. May be required to pass written test.” - Public Affairs Officer (Grade A9) — quoted qualifications: - Training and Experience: “For Grade A9, educational development, including and/or supplemented by work experience, typically acquired through the completion of an advanced university degree program in economics, political science, international relations, or related field, is required.” - Knowledge, Skills and Abilities: “At Grade A9, good knowledge of the legislative process in the U.S. Congress. Some knowledge of the current economic, monetary, and political issues, and the Fund’s role, functions and history. Ability to communicate effectively, orally and in writing, and to synthesize reports of interest to management.” - Information Officer: noted re-grading to A11/A12/A13. - Executive Board and Member Services Officer (Grade A9) — quoted qualification alternatives: - “For Grade A9, educational development, typically acquired by the completion of an advanced university degree in business administration, economics, information technology, public administration and government, or related field, or equivalent, is required. Alternatively, a minimum of three years of experience in a related position at Grade A8, or equivalent, is required.” - Translation Editorial Officer: job summary states: “Under the general supervision of the Senior Translation Editorial Officer, proofreads, indexes and edits any translated Fund publications and documents.” Translation of routine documents is among the “[m]ain duties and responsibilities.” ### Anomalies and contradictions highlighted - Administration Committee Final Minutes (May 9, 2002) quote: proofreader’s job was in the Bureau of Language Services and “would require a facility with languages other than the participant’s native language which she did not have.” Nonetheless, Translation Editorial Officer was listed among positions she might fill “with a reasonable amount of training and accommodation.” ### Separation for medical reasons vs. disability retirement distinctions - Respondent’s differentiation: - In most severe cases involving total and permanent disability, staff may receive a disability pension under the SRP as substitute for permanent loss of employability. - If standard is not met but staff is incapacitated and will not be able to perform duties in the foreseeable future, she may be separated for medical reasons, triggering mandatory separation benefits based on length of service. - GAO No. 16 contemplates SRP participants separated on medical grounds who will not qualify for disability retirement. - GAO No. 16 Section 11.02 requires separation not be implemented until a determination on disability retirement under the SRP has been made, affecting entitlements to separation benefits. - Thus, under internal law, separation for medical reasons cannot determine entitlement to a disability pension. - The Tribunal may give weight to factual circumstances of separation when reviewing SRP Administration Committee decisions on disability retirement. ### Tribunal finding on total incapacity - HRD Memorandum of May 1, 2002: Applicant “. . . had no other skills, not requiring the use of the computer or her hands, that would have made it possible to accommodate . . . her in another position.” - Tribunal’s answer: Ms. “J”, while in contributory service, became totally incapacitated — not incapable of working at all but incapable of performing any duty the Fund may reasonably call upon her to perform. - Tribunal is not convinced of any reasonable prospect the Fund will call upon Ms. “J” to perform any listed positions or her function of Verbatim Reporting Officer. - Dispositive finding: the Fund has not demonstrated any genuine prospect of in future calling upon Ms. “J” for performance of any duty given her experience and organizational needs. Thus, in respect of performance of any such duty, Ms. “J” is totally incapacitated. ### Question of whether incapacity is “likely to be permanent” - Applicable standard: SRP Section 4.3(a)(ii) — incapacity must be total and “likely to be permanent.” - Precedent: Courtney (No. 2), para. 33 — both elements relate to any duty the participant might reasonably be called upon to perform. - Administration Committee’s Decision on Review: although it held Ms. “J” was not totally incapacitated under Plan standards, it concluded her medical condition was “likely to be permanent”: “Taking all of the circumstances into account, the Committee concluded that while your condition is likely to be permanent, it is not disabling to the extent that you are totally incapacitated from performing any duties that the Fund might call upon you to perform.” Committee also expressed the condition was “treatable.” ### Medical evidence and contrasting opinions - Respondent’s pleadings: medical evidence before SRP Administration Committee showed Ms. “J” is neither totally nor permanently incapacitated for duties the Fund might reasonably ask of her. - Medical Advisor’s reports: August 29, 2000; February 16, 2001; final report April 25, 2002 — April 25, 2002: “She is not totally or permanently incapacitated from performing tasks that the IMF might reasonably ask of her.” - Reviewing psychiatrist opined: “I do not believe the patient is permanently disabled, as I believe that continued psychotherapy and the use of psychotropic medication may well ameliorate her condition to the point where she is able to once again resume a productive career as a verbatim reporter.” - Final Minutes of Administration Committee (May 9, 2002): Medical Advisor confirmed opinion that “. . . the expectation was that she could improve over time,” based on a theory the condition was primarily psychosomatic. - Treating rheumatologist (May 30, 2001): “hopeful” that Ms. “J” would be able to return to “. . . some basic typing in a limited capacity when resolution of her current condition occurs. The time of that resolution is indeterminate.” - Applicant’s self-evaluation (March 2002): main concern that she does not know whether condition will remain stable, continue to improve, or deteriorate; reported “. . . pain levels have become more manageable. . . ” but regular activities can cause instant flare-up and there was no time when she was not aware something was wrong with her hands. ### Precedent consideration (WBAT A) and Tribunal’s application - WBAT A: Medical Advisor thought treatment would restore capability; WBAT reversed PBAC because medical records showed severe long-standing condition. WBAT noted Section 3.4(a) requires incapacity be “likely” to be permanent, not absolute permanence, and cited Section 3.4(d) allowing termination of disability pension if capacity is regained. - Applicant’s submissions echo uncertainty about future course and ability to secure employment even if qualifications exist. ### Tribunal conclusion on likely permanence - Evidence shows impairment of repetitive use of hands persisted after 1999 injury; Fund concedes repetitive use impairment prevents performance of Verbatim Reporting Officer duties. - Applicant pursuing community college studies using voice-activated software; Tribunal considers whether this affects permanence determination. - Tribunal finds it is likely Ms. “J”’s condition will be permanent in the sense that she will remain unable to be appointed to a position in the Fund. - Tribunal notes SRP Section 4.3(d): disability pension may cease if medical examination or other satisfactory evidence shows incapac ity has wholly ceased or earning capacity regained; partial recuperation may lead to proportionate reduction of disability pension. *Source: Judgment No. 2003-1 (Ms. "J"), IMF Administrative Tribunal.* ### 158. In addition to seeking reversal of the Administration Committee’s ### JUDGMENT NO. 2003-1 (MS. "J") ### Standard of review and due process principles - The Tribunal applies the Fund’s internal law and “generally recognized principles of international administrative law concerning judicial review of administrative acts” (Article III, second sentence). - The right to be heard (audi alteram partem) is a generally applicable principle to decisions by international organizations (Report of the Executive Board, p. 18). - The Tribunal recognizes that procedural fairness can be a ground to overrule administrative committee decisions (citing Shenouda, para. 36, and other IMFAT precedents). ### Procedural issues raised in Ms. “J”’s case - Applicant’s contentions: - Denial of due process because the Administration Committee acted on the opinion of its Medical Advisor who did not examine Applicant. - The Medical Advisor was not required to give oral testimony or be cross-examined by Applicant’s representative. - The Medical Advisor’s opinion was not provided to Applicant until after the Committee’s decision. - The Committee acted on an incomplete record. - The Committee’s Decision did not state reasons. - The Decision was taken almost a year after Applicant’s application, contrary to Rules of Procedure. - Decision-making was improperly influenced by conflicts of interest. - Amicus Curiae position: - Due process requires the Administration Committee to review records of the applicant’s treating physicians to determine whether the Medical Advisor acted improperly or arbitrarily. - Respondent position: - Applicant was not denied due process; the Committee acted in accordance with its Rules of Procedure. - The Committee is not required to hold oral hearings or directly review treating physicians’ records but may do so. - The Committee may suspend deadlines to seek additional information. - The Committee properly relied on the Medical Advisor unless his conclusion was arbitrary or improper. - The Administration Committee considered findings of three independent medical evaluators in this case. ### Relevant provisions of the Administration Committee’s Rules of Procedure - Rule VI (Proceedings) (full text as provided): - The Committee will “inquire about all information it needs for an equitable consideration of a Request.” - The Committee “may rely on written submissions or it may decide to convene an oral hearing, and decide who may attend such hearing.” - “The Secretary will provide the Requestor with reasonable notice of the date of any proceeding in the matter, except in the circumstances described in Rule II, paragraph 5.” - The Committee may make oral hearings or evidence confidential; non-confidential information shall be subject to review and discussion, including cross-examination in the case of oral testimony. - The Requestor and any other party may be represented by counsel, each at his own expense. - Deliberations and minutes are confidential unless the Committee decides otherwise. - Rule VII, para. 1: - “Each Decision shall be in writing, stating the reasons on which it is based and any action that the Committee may take or recommend.” - In Ms. “J”’s case the initial Decision denying disability retirement “did not set forth any reasons,” merely reciting the disability standard and announcing the Committee’s conclusion that she did not meet it. - Rule VII, para. 3: - “Upon request, the Secretary of the Committee will furnish to the Requestor copies of any non-confidential documents and a summary, prepared by the Secretary, of confidential evidence that it considered in making its decision.” - Ms. “J” examined and responded to the Medical Advisor’s report during the pendency of review, but only after the Medical Advisor’s conclusions had been submitted and acted upon by the Committee; additional medical evaluations were undertaken by the Committee during pendency to which Applicant did not have the opportunity to respond. ### Tribunal’s findings on procedural matters (observations) - The Tribunal found no need to decide Ms. “J”’s procedural complaints because it disposed of the application on substantive grounds, but it noted concerns for future guidance. - The Tribunal observed that: - There is room to question whether the Committee’s implementation of Rule VI afforded Applicant sufficient and timely opportunity for rebuttal. - The Committee’s failure to provide reasons in its initial Decision appears to violate Rule VII, para. 1, and denies an opportunity for meaningful response. - The timing and confidentiality practices surrounding medical evidence can raise questions about reasonable notice and opportunity to be heard. - Information formally communicated by the Secretary (e.g., a workers’ compensation Claim Administrator finding) may raise concerns about improper influence. ### Recommendations to the Administration Committee (for future cases) - Consider enabling an applicant to submit observations in a current and timely way upon any medical reports and opinions submitted to or rendered by the Medical Advisor in the case. - Members of the Administration Committee should be entitled to review the medical reports themselves to weigh fully the views of treating and reviewing physicians and evaluate the conclusions of the Medical Advisor. - Consider review of an applicant’s condition by a Board of Medical Advisors (tripartite model) as used in other international organizations (ILO, UNESCO) and as already embodied in Fund internal law for medical separation (GAO No. 13, Rev. 5 (June 15, 1989), Annex I, panel constitution model). - Confine the Medical Advisor’s advice to medical questions and not to the ultimate conclusion whether the applicant is totally and permanently incapacitated; the Administration Committee should draw that ultimate conclusion. - Permit the applicant to comment upon any statements of Fund officers regarding the applicant’s capacity to perform particular duties the Fund might reasonably call upon the applicant to perform. ### Remedies ordered - The Tribunal’s remedial authority is exercised under Article XIV of the Statute (full Article XIV reproduced in text). - The Tribunal decides: - The decision of the Administration Committee denying a disability pension to Ms. “J” shall be rescinded. - The disability pension shall be granted. - Procedural-compensation and costs: - The Tribunal declined to award separate compensation for procedural unfairness, having found it unnecessary to decide the procedural complaints. - As to Applicant’s request for legal costs, Article XIV, Section 4 permits the Tribunal to order reasonable legal costs when an application is “well-founded in whole or in part,” taking into account specified criteria. The Tribunal referred to past practice (Ms. “C” and Judgment No. 1997-1, IMFAT Order No. 1998-1) in assessing compensable legal costs but did not set an award in the excerpt provided. *Judgment of the IMF Administrative Tribunal in JUDGMENT NO. 2003-1 (MS. "J").* ### 182. In the present case, Applicant has submitted a detailed statement of ### imfat-3 - 182. In the present case, Applicant has submitted a detailed statement of ### Tribunal decision on Ms. “J” - The Tribunal found Ms. “J”’s Application on the merits to be well-founded. - Pursuant to Article XIV, Section 4 of the Statute, the Fund shall pay Applicant the reasonable costs of her legal representation. - The Tribunal will assess the amount of compensable legal costs following further observations by Respondent and an opportunity for response by Applicant, according to a schedule to be transmitted with the Judgment. - Decision orders: - The Administration Committee’s denial of a disability pension to Ms. “J” is rescinded and a disability pension is granted retroactive to the date of Applicant’s retirement. - Applicant’s request for two years’ salary to compensate for alleged unfair treatment is denied. - The Fund shall pay Applicant the reasonable costs of her legal representation, amount to be assessed as noted above. - Judgment dated September 30, 2003. - Tribunal members: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge. Registrar: Celia Goldman. ### Procedural history in Ms. “K” case - Tribunal convened September 29 and 30, 2003 with Judges Stephen M. Schwebel (President), Nisuke Ando and Michel Gentot (Associate Judges). - Filing chronology: - Application filed August 15, 2002; found deficient and corrected within the 15-day period; considered filed on original date. - Application transmitted to Respondent on September 5, 2002. - Summary issued within the Fund on September 9, 2002 (Rule XIV, para. 4). - Respondent Answer filed October 21, 2002. - Applicant Reply submitted November 25, 2002. - Fund’s Rejoinder filed December 27, 2002. - Neither party requested oral proceedings; Tribunal did not find them required (Article XII; Rule XIII, para. 1). ### Legal framework: Disability retirement under the Staff Retirement Plan (SRP) - SRP Section 4.3 governs disability retirement. - SRP Section 4.3(a) criteria for granting disability pension: - A participant shall be retired on a disability pension before normal retirement date on the first day of a calendar month not less than 30 nor more than 120 days following receipt by the Administration Committee of written application. - The Pension Committee must find, on the recommendation of the Administration Committee and the certification of physician(s) designated by the Administration Committee, that: - (i) such participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform; - (ii) such incapacity is likely to be permanent; and - (iii) such participant should be retired. - SRP Section 4.3(b) formula for disability pension: - Disability pension equals the normal pension that would be payable if 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. - SRP Sections 4.3(c), (d), (e) provide for periodic medical examinations and for discontinuance, reduction, restoration, or deeming withdrawal from the Plan where incapacity ceases or pension is discontinued and not restored within a specified period. - SRP Section 4.3(f) defines “normal retirement date”: - “the first day of the calendar month next following the 65th anniversary of his date of birth, or the date of such anniversary if it shall fall on the first day of a calendar month.” ### Fund administrative rules on separation for medical disability (GAO No. 13 and GAO No. 16) - GAO No. 13, Rev. 5 (June 15, 1989), Annex I, Section 1 — separation at staff member’s initiative: - Staff member may request separation on grounds of medical disability, must present medical evidence and be willing to undergo examinations by Fund’s medical advisors. - GAO No. 13, Annex I, Section 2 — separation at the Fund’s initiative: - Section 2.01.1: In sick leave status, separation may be effected if Director of Administration, on medical advice, forms the opinion staff member will not be able to return to duty in the foreseeable future. - Section 2.01.2: Separation may be effected where a staff member has been prevented over a prolonged period from performing duties for medical reasons and no suitable position is found in accordance with GAO No. 11. - Panel medical review and procedure: - Section 2.02.1: Director of Administration communicates opinion to staff member in writing, stating reasons and last date for objections. - If objection is filed, a three-member panel of medical experts is to render an opinion, normally examining the staff member personally (Section 2.03 and 2.03.4). Director of Administration decides thereafter (Section 2.04.1). - Interaction with SRP and GAO No. 16: - GAO No. 13, Annex I, Section 2.04.2: If Director decides separation for medical reasons, GAO No. 16 procedures follow and, for SRP participants, determination of eligibility for a disability pension is included. - GAO No. 16, Rev. 5 (July 10, 1990), Section 11: In case of permanent incapacity as determined under Annex I to GAO No. 13, separation procedures apply; separation of an SRP participant shall not be implemented until a determination under the Plan on disability pension is made. - GAO No. 16, Section 11.04: If separated for medical reasons and not granted a disability pension, the staff member is automatically granted a separation payment from the Separation Benefits Fund. ### Factual background of Ms. “K” - Employment history: - Ms. “K” served as a Staff Assistant; first hired on a contractual basis in 1985; became staff in December 1986. - From 1993 onward experienced a series of illnesses with intermittent absences and extended sick leave. - In August 1999 began a period of extended sick leave (at full pay) for the condition underlying the disability retirement application. - Administrative leave and separation: - Extended sick leave expired March 30, 2000. - On April 1, 2000, she was placed on administrative leave with pay pending outcome of her disability retirement application (filed December 20, 1999). - SRP Administration Committee denied her disability retirement application on March 14, 2001; Ms. “K” was separated from the Fund pursuant to GAO No. 16, Rev. 5. - As a result of the length of her service, Ms. “K” received the maximum 22½ months separation benefit, which expired June 7, 2003. - Separation Benefits Fund calculation (as stated in GAO No. 16): - Payment on separation equals one and one-fourth months’ salary for each year of service, subject to a maximum that is the smaller of: - (a) the equivalent of 22-1/2 months’ salary; and - (b) the amount of salary that would otherwise have been payable between the last day on duty and mandatory retirement age of 65. - Salary rate used is the salary on the last day on duty; length of service computed to the nearest full month. *Source: Administrative Tribunal of the International Monetary Fund, Judgments Nos. 2003-1 and 2003-2 (September 30, 2003), IMF Administrative Tribunal Reports, Vol. III.* ### 17. On December 20, 1999, Ms. “K” filed with the Administration Com- ### 17. On December 20, 1999, Ms. “K” filed with the Administration Committee of the Staff Retirement Plan a Request for disability retirement. ### Medical history and initial medical advisory review - Ms. “K”’s medical history reviewed by the Medical Advisor included treatment and surgeries for breast cancer and “depressive episodes resulting in suicide attempts.” - Diagnosed with “borderline personality” and noted to have not undergone psychotherapy of “sufficient intensity and frequency” to treat the condition. - The Medical Advisor observed that “[w]orking at the IMF has heightened her feeling of vulnerability, which due to her personality structure [has] been transformed into persecutory feelings.” - Medical Advisor assessment of capacity and motivation: - “[A]lthough she has the cognitive capacity to work at a job similar to the one she performed at the IMF, she lacks the motivation to seek to return to work with the IMF or to seek employment elsewhere.” - Medical Advisor’s concluding Opinion and Recommendation (verbatim excerpts preserved): - OPINION: - Independent evaluator diagnosed Mrs. [“K”] with a ‘borderline personality’ with dissociative features. - Characteristics described: pervasive pattern of unstable and intense interpersonal relationships; alternating idealization and devaluation; recurrent suicidal gestures or threats; marked mood reactivity; transient stress-related paranoid ideation or dissociation. - Medication usually can control depressive aspects; relationship problems may require changing surroundings to bolster self-esteem. - Primary characterologic disorder impairs ability to sustain collaborative tasks because it causes perception of the IMF as demanding and insensitive, but “it does not totally incapacitate her from performing tasks that the IMF might reasonably ask of her.” - Other medical conditions “are not thought to be major contributors” to impairments; her depression is in remission; her breast cancer has not recurred. - Intensive therapy could lessen consequences but she is “unlikely to substantially commit herself to long-term intensive psychotherapy.” - “Under the circumstances, Mrs. [“K”] is unfit to perform satisfactorily her IMF job function because of the constellation of psychologic factors associated with her characterologic disorder.” - The disorder causes difficulty in effective collaboration, aggravated by other problems (e.g., anxiety associated with breast cancer therapy or depression) and by protracted absence from the IMF work environment. - “Her condition is permanent in that she will not be able to return to the IMF and perform satisfactorily.” - Conclusion: “Accordingly, Mrs. [“K”] is unfit to successfully perform the tasks of her position; therefore, an agreed upon employment separation on that basis is likely to be mutually beneficial and warranted to her and the IMF.” - RECOMMENDATION: - “Mutually agreed upon separation because of unfitness.” ### Administration Committee consideration and decision - Committee meeting to render decision: March 1, 2001. - Final Minutes summarized the Committee’s discussion, including: - Case involved a staff member with a personality disorder for whom many accommodations had been made. - Medical Advisor considered external evaluator’s assessment thorough. - Prior medical conditions either in remission or under control. - Person’s attitude and ability to work might improve but personality precluded commitment to therapy. - Person was neither acutely depressed nor psychotic and could perform duties, but unpredictable personality would likely produce interpersonal friction if returned. - “A return to the workplace was no longer a viable option because the person was reluctant to return to work and co-workers were fearful of her behavior.” - Committee considered work-at-home option but concluded extensive contact with workplace would still produce “interpersonal friction.” - Committee concluded Ms. “K” did not qualify for disability retirement. - Committee Decision issued: March 14, 2001, informing Ms. “K”: - “It has been found that your case does not meet the requirement of Section 4.3 (a) (i) of the Staff Retirement Plan, which states ‘such participant, while in contributory service, became totally incapacitated, mentally or physically for the performance of any duty with the Employer that he might reasonably be called upon to perform.’” - The Decision included no reasons or avenues of recourse and advised Applicant to contact a particular HRD official “. . . to discuss other options.” ### Administrative review channels and rules cited - The case proceeded through the SRP Administration Committee’s Rules of Procedure issued in 1999. - Rule VIII (Review of Decisions) provides: - A Requestor may submit an Application for Review within ninety (90) days after receipt of the Decision. - The Committee may review a Decision in response to a timely Application or at its own initiative, and may not review to affect adversely except in cases of: - (a) misrepresentation of a material fact; - (b) the availability of material evidence not previously before the Committee; or - (c) a disputed claim between two or more persons claiming rights or benefits under the Plan. - Committee must notify Applicant of results of review within three months of receipt of the Application by the Secretary. - Rule X (Exhaustion of Administrative Review) provides that the channel is exhausted for filing with the Administrative Tribunal when: - (a) three months have elapsed since an Application for review was submitted and results have not been notified; or - (b) the Committee has notified the Applicant of the results of any review or its decision to decline to review; or - (c) conditions set out in Article V, Section 3(c) of the Statute have been met. - Rule X, paragraph 2 addresses matters before the Pension Committee and referral procedures. ### Applicant’s application for review and treating psychiatrist’s input - Application for review submitted by Ms. “K”: June 16, 2001. - Appended letter from treating psychiatrist dated June 15, 2001: - Treating psychiatrist had been treating Ms. “K” since August 21, 2000. - History of “major depressive episodes” over the preceding six years, precipitated by breast cancer and workplace difficulties. - Symptoms included “overwhelming persistent anxiety” and “paranoid behavior” related to the workplace; concern a return to work would exacerbate symptoms. - Treating psychiatrist’s opinion (verbatim): “Based on her mental disorder, which is major depressive disorder recurrent, severe, in addition to chronic Lyme disease, which is manifested by mood swings, generalized fatigue, difficulty concentrating and arthritic problems; and history of breast cancer, which is fortunately currently in remission, Mrs. [“K”]’s conditions are permanent in that they not only totally incapacitate her from performing tasks that the IMF might reasonably ask of her, but from performing a job anywhere else.” ### Additional medical review by SRP Administration Committee (reviewing psychiatrist) - Committee engaged a psychiatrist specializing in neuropsychiatric medicine and occupational psychiatry to review records and to perform an in-person assessment. - Initial record review date: August 25, 2001; records dated back to 1998. - Noted life circumstances in records: death of Ms. “K”’s husband from cancer, a head injury to her son, 1995 breast cancer diagnosis and medical/surgical complications. - March 30, 2000 note from earlier treating physician recommended disability retirement: “Since going on medical disability, she has continued to have intermittent periods of depression in spite of antidepressant medication and psychotherapy.” - Reviewing psychiatrist’s record-review diagnostic impressions: - Most plausible diagnoses: “Borderline Personality Disorder, Recurrent Depression secondary to that, and/or an alternate form of Bipolar Disorder.” - Reviewing psychiatrist’s employability assessment (verbatim excerpts): - If diagnoses are correct, the patient would be “periodically hampered from performing adequately in the workplace, but not permanently.” - General tendency to misinterpret and mistrust, making it difficult to work with coworkers and vice versa; overreaction with mood swings. - “Although technically she could do any job within the IMF, on a practical level it would be very difficult for her to work within a vocational context without overreacting to what she perceives as discrimination, rejection or ‘different treatment,’ and would be very difficult for the organization to tolerate her behavior. I do agree with Dr. . . . that technically she is not disabled, but on a practical level would find working difficult and the organization would find her difficult to work with based on the above.” - Concluding statement: “She is technically not disabled, but both she and any organization would find it hard to work together.” ### In-person psychiatric evaluation, testing, and final impressions of reviewing psychiatrist - In-person evaluation and psychological testing performed: September 5, 2001. - Noted continued treatment with treating psychiatrist and ongoing medication. - Reviewing psychiatrist’s conclusions (verbatim excerpts): - Patient exhibits multiple psychiatric problems; view of surroundings colored by paranoid ideation (suspiciousness with ideas of reference), possibly bipolar disorder. - “The patient certainly would have difficulty in fitting into groups and working consistently without problems. However, this is not a consistently disabling condition and I do not believe at this time that she is disabled.” - “I do believe that she sees her life through the prism of referential thinking part of, in this case, the personality disorder and at times through the prism of bipolar, but in general, the patient seems to be able to do her work.” - Reinforced original impression: intermittent difficulty in group work and interpersonal interactions, but “she is not totally disabled from her work by any psychiatric condition.” - “There is no suggestion that work contributed in any meaningful manner to this patient’s psychiatric difficulties. While she may have had reactions to her perceptions and to events at the workplace, her psychiatric symptoms emanate from biologic, developmental characterologic constructs endemic to her personality and neurochemistry.” - Review of treating psychiatrist’s notes (November 11, 2001) indicated treating psychiatrist diagnosed bipolar disorder and believed she was totally disabled; reviewing psychiatrist found those notes “consistent with my evaluation” but noted inconsistency in disability conclusion: treating psychiatrist says totally disabled, reviewer does not. - Review of psychological testing concluded patient “. . . who has considerable psychological pathology which alters the way in which she perceives external stimuli.” - Reviewing psychiatrist’s final opinion on testing and work capacity: - “Ms. [“K”] has significant premorbid pathology which does not formally disable her from work, but which would make it very difficult to work with her or for her to work with others. However, she is not disabled from her occupation or for any occupation for which she is trained or has reasonable experience.” *IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. III — JUDGMENT NO. 2003-2 (MS. “K”)* ### 31. On April 25, 2002, the Medical Advisor prepared his final report to ### imfat-3 - 31. On April 25, 2002, the Medical Advisor prepared his final report to ### Medical Advisor’s final report (April 25, 2002) - Reviewed materials: - findings of the reviewing psychiatrist - letter from the treating psychiatrist - records of Ms. “K”’s infectious disease specialist - Conclusion (verbatim excerpts): - “I had concluded that Mrs. [“K”] had a ‘Borderline Personality’ with dissociative features that was characterized by a pervasive pattern of unstable interpersonal work relationships. These conditions required her to make efforts to change her surroundings in order to bolster self-esteem and stress-related paranoid ideation. Medication had controlled the depressive aspects of this mental condition. - Although not totally incapacitating, her characterologic disorder and her limited personal adaptive capabilities make it difficult for her to collaborate with co-workers; and therefore, to successfully perform the required tasks of her position. Intensive psychotherapy would be expected to lessen the negative consequences that her personality disorder has upon her workplace functioning.” ### Infectious disease specialist review and Medical Advisor concurrence - Additional review sought regarding references to “chronic Lyme Disease.” - Format and timing: - Review delivered in the format of a letter from external counsel because the reviewing physician was unable to provide a written report before the Committee’s upcoming meeting date. - Infectious disease specialist’s conclusions (summarized): - Ms. “K” most likely had suffered from Lyme Disease in the past. - She had been successfully treated. - There was no evidence of persistent disease of the joints or central nervous system. - The Medical Advisor expressed concurrence with that assessment on May 2, 2002. ### Administration Committee’s decision-making process and Final Minutes (May 2–9, 2002) - Documentation transmitted to Committee members on May 2, 2002 included: - (a) Ms. “K”’s original Request for disability retirement and the Medical Advisor’s original opinion; - (b) Ms. “K”’s application for review; - (c) reports of the reviewing psychiatrist; - (d) the letter summarizing views of the reviewing infectious disease specialist; and - (e) the Medical Advisor’s final report. - Secretary’s covering memorandum conclusions: - Reviewing physicians and the Medical Advisor were of the opinion that the Applicant is not totally and permanently disabled. - Applicant’s condition is treatable. - There are jobs at the Fund that she could be called upon to perform. - Salient excerpts from the Committee’s Final Minutes (May 9, 2002) — key points (verbatim content preserved): - Members sought clarification on how difficult it was for others to work with the participant and whether such difficulties could make it impossible for the person to do the job even though technically capable. - Concern about “moral hazard in granting a disability pension to a person who had an apparent treatable personality disorder as opposed to an incapacitating mental illness.” The Committee agreed on this point. - The Medical Advisor noted the participant frequently changes physicians and does not fully comply with prescribed medical regimes; diagnosed as a borderline personality where characterological condition primarily influences behavior. - Treatment is difficult because the participant can but does not comply with treatment regimes. - The condition can be controlled with medication usually for depression and anxiety. - The condition existed at an early developmental period and develops over a person’s life time. - External counsel replied that other Plans would not consider this condition disabling. - The Medical Advisor: the key to determining incapacity is whether there is a volitional problem as with thought disorders; here thinking is not disordered and the person has a choice to comply or not comply with a treatment regime which could help her. - The Plan cannot require anyone to take medicine or undergo surgery, but the Plan is not required to grant a disability pension to a member who refuses treatment that will alleviate or eliminate the disability. - Legal Representative: when the person can do the job, even though not on a sustained long-term basis, they are not permanently and totally disabled. - The Medical Advisor reiterated this was a developmental disorder, not a thought disorder; since there are jobs the participant could perform, she is not totally disabled; since her condition can be controlled with prescription drugs even though there is expected to be recidivism, she is not permanently disabled. ### Administration Committee Decision on Review (May 17, 2002) - Decision: unanimously sustained the original Decision. - Decision letter conclusions (verbatim excerpts): - “Since 1990, you have been given opportunities to work as a Staff Assistant in several different areas. . . . The Committee concluded that it is within your capacity to perform the duties required of Staff Assistants.” - “Taking all of the circumstances into account, the Committee concluded that your condition is treatable and so is not a total and permanent disability as required by the Plan.” - Final paragraphs: advised Ms. “K” of her right to contest the decision in the Administrative Tribunal. - Applicant filed Application with the Administrative Tribunal on August 15, 2002. ### Applicant’s principal contentions (numbered as in source) - 1. Applicant is totally and permanently incapacitated within the meaning of SRP Section 4.3. - 2. The SRP Administration Committee incorrectly interpreted the applicable Plan provision to require the symptoms of a psychiatric disorder to be continuous in order to be totally incapacitating. Applicant’s symptoms do not wax and wane in a predictable manner so as to allow the employer to accommodate their periodicity. - 3. An incapacity is “permanent” within the meaning of SRP Section 4.3 when the symptoms arise at irregular intervals but with such frequency as to prevent the Applicant from functioning as an employee for indefinite periods. - 4. Applicant is unable to perform her job or any other job. - 5. Within the context of Applicant’s remaining working life, she is totally and permanently disabled, although a younger person might not be so classified. - 6. The Fund’s administration is in the best position to determine the effect of Applicant’s medical condition on her ability to perform her job or other work with the IMF. The physicians’ definitions of total incapacity are entitled to no more deference than are laymen’s in determining fitness for work. The administration has concluded that Ms. “K” is not a candidate for continued employment with the IMF, yet she is determined not to be totally incapacitated for purposes of disability retirement. - 7. Applicant has attempted to alleviate her condition by undergoing psychotherapy and taking prescribed medications; she has cooperated with the treatment regimens of her treating physicians. - 8. The medical evidence shows that a return to work would likely exacerbate Applicant’s symptoms. - 9. The nature of borderline personality disorder should not be minimized, as the term “borderline” signifies the border between neurosis and psychosis, not between normalcy and mild neurosis. - 10. The Administration Committee’s decision was procedurally defective because the medical experts were not jointly selected to be truly independent, the Committee considered a hearsay report of the findings of one of the reviewing physicians, and “ [t]he information provided the Committee excluded applicant’s [i]nformation in its entirety.” - 11. Applicant seeks as relief: - a) that the Tribunal order that Applicant be granted a disability pension retroactively; - b) that “all funds deducted from her service accounts be recredited;” and - c) legal costs. ### Respondent’s principal contentions (numbered as in source) - 1. The Administration Committee correctly applied the terms of the Plan to determine that Applicant is not totally and permanently incapacitated within the meaning of SRP Section 4.3. - 2. Intermittent incapacity is not “total” incapacity under the SRP. As long as Applicant can perform her duties, even if not on a sustained basis, she is not totally and permanently incapacitated. - 3. The Administration Committee properly determined that Applicant could perform the functions of a Staff Assistant even though her personality disorder could make it intermittently difficult for her to get along with colleagues. - 4. Assuming that Applicant is currently totally incapacitated, this incapacity is not likely to be permanent. Applicant’s condition is treatable. - 5. The record shows that Applicant has been insufficiently committed to a treatment program that would control her symptoms. Her thinking is not disordered, and she could choose to comply with such a program. - 6. At age 52, Applicant has approximately 13 years of remaining working life until mandatory retirement. She has not established that this is insufficient time for treatment of her personality disorder. - 7. Disability retirement, which entails a lifelong commitment on the part of the Fund, is intended for the most extreme medical conditions. A condition such as Applicant’s may be an appropriate case for medical separation but not for disability retirement. - 8. The terms of the SRP clearly contemplate that the Administration Committee’s decision must be based on, and consistent with, the expert advice of its Medical Advisor. - 9. The Administration Committee acted appropriately in considering the opinions of both reviewing and treating physicians. That the underlying records of the treating physicians are not provided to Committee members does not represent a failure of process because the records are of a sensitive nature and the members do not have the expertise to evaluate them. - 10. Applicant has not shown any bias on the part of the reviewing physicians or that it was improper for the Committee to accept a summary by external counsel of the report of the infectious disease specialist. Applicant has not shown that the Committee failed to take into account any material information that would have affected its decision. ### Administrative Tribunal’s standard of review for disability retirement cases - Governing legal text: - Second sentence of Article III of the Statute of the Administrative Tribunal: “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.” - Nature and purpose: - Standard of review defines relationship and deference between the Tribunal and the decision maker; degree of deference varies with nature of decision, grounds contested, and authority/expertise vested in original decision maker. - Distinguishing feature for SRP Administration Committee decisions: - Committee plays dual role: makes the administrative act and supplies a channel of review for exhaustion of remedies under Article VIII of its Rules of Procedure; decisions of the SRP Administration Committee are subject to Tribunal review. - Sources consulted in resolving appropriate standard: - (a) text of Article III requiring application of generally recognized principles of international administrative law; - (b) the published Commentary on the Statute (Report of the Executive Board proposing the Statute’s adoption); - (c) IMFAT jurisprudence; and - (d) jurisprudence of other international administrative tribunals. - Prevailing test for review of individual managerial decisions (as articulated in the Commentary and IMFAT jurisprudence): - discretionary decisions cannot be overturned unless they are 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. *Judgment No. 2003-2 (Ms. “K”), IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. III* ### 44. In Ms. “J”, the Tribunal observed that the standard articulated in the ### JUDGMENT NO. 2003-2 (MS. “K”) ### Standard of Review for SRP Administration Committee Decisions - The Tribunal applied the least rigorous scrutiny when assessing whether an administrative act was “arbitrary or capricious,” the component emphasized by Respondent in Ms. “J”. - The Tribunal recognized that the appropriate standard of review depends on factors including the nature of the contested decision and the grounds of challenge, and that different factors may be emphasized in different cases. - The Tribunal concluded that decisions construing and applying the Staff Retirement Plan (SRP) to particular cases may more closely resemble a judicial act than an act of managerial discretion. - The Tribunal noted a further distinction: individual SRP Administration Committee decisions are not reviewable by the Managing Director but are subject only to direct appeal (after reconsideration by the Committee) to the Administrative Tribunal. ### Role of Appellate Jurisdiction and Comparative Jurisprudence - The Tribunal cited Mr. “P” (No. 2) and related authority to emphasize the unique nature of appellate authority under Section 7.2 of the SRP and Article II(1)(b) of the Tribunal’s Statute, ensuring an enrollee or beneficiary is not left without third party remedy. - The Tribunal drew on World Bank Administrative Tribunal (WBAT) decisions (e.g., John Courtney (No. 2), Ahlam Shenouda, A) that treated appeals from pension committees as invoking a “special appellate jurisdiction” allowing review of merits, including: - Examination of existence of the facts; - Whether conditions required by the Staff Retirement Plan for granting benefits were met; - Whether the committee correctly interpreted the applicable law; - Whether requirements of due process were observed. - The WBAT has described its review power under comparable pension-plan appellate provisions as “very broad” allowing examination of all elements of fact and law as well as procedural fairness and transparency. ### Distinguishing Features of SRP Administration Committee Decisions - Functionally “quasi-judicial”: construing Plan terms and applying them to case facts may require judicial-like analysis rather than typical managerial judgment. - Procedurally distinct: decisions are taken by the Administration Committee and are subject only to direct appeal to the Administrative Tribunal (after reconsideration), not to Managing Director review. ### Standard of Review Adopted in Ms. “J” The Tribunal adopted the following three-part standard of review for a denial of disability retirement by the SRP Administration Committee: - 1. Did the SRP Administration Committee correctly interpret the requirements of SRP Section 4.3 and soundly apply them to the facts of the case, or was the Committee’s decision based on an error of law or fact? - 2. Was the Committee’s decision taken in accordance with fair and reasonable procedures? - 3. Was the Committee’s decision in any respect arbitrary, capricious, discriminatory or improperly motivated? ### SRP Section 4.3(a) — Text and Essential Qualifications - The Tribunal quoted SRP Section 4.3(a) in full: “4. 3 Disabilit y Retirement (a) A participant in contributory service shall be retired on a disability pension before his normal retirement date on the first day of a calendar month not less than 30 nor more than 120 days immediately following receipt by the Administration Committee of written application therefor by the participant or the Employer; on the condition that the Pension Com- mittee must find, on the recommendation of the Administration Commit- tee and the certification of a physician or physicians designated by the Administration Committee, that: (i) such participant, while in contributory service, became totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform; (ii) such incapacity is likely to be permanent; and (iii) such participant should be retired.” - The Tribunal identified the two essential qualifications for disability retirement under SRP Section 4.3(a): - 1) the applicant is “. . . totally incapacitated, mentally or physically, for the performance of any duty with the Employer that he might reasonably be called upon to perform,” and - 2) the incapacity is “likely to be permanent.” ### Application to Ms. “K” — Issues Framed for Determination - The dispute in Ms. “K” centers on whether the applicant’s condition incapacitates her from performing the functions of the job she had occupied for many years, specifically in the context of a psychiatric illness that causes recurring impairments. - Applicant’s contention: - The Administration Committee erred by requiring psychiatric symptoms to be “continuous” to qualify as totally incapacitating. - The relevant question is whether symptoms that are “. . . irregular in time of appearance, but [which occur] with such frequency as to render the sufferer unable to function as an employee at irregular times for indeterminate durations” can amount to total and permanent incapacity under the SRP. - Applicant asserts her symptoms do not wax and wane in a predictable manner so as to allow accommodation by the employer. - Respondent’s contention: - “Intermittent” incapacity is not “total” incapacitation under the SRP. - As long as Applicant can perform her duties, “even if not on a sustained basis,” she is not totally and permanently incapacitated. - The Tribunal identified the central legal and factual questions: - Whether (or when) recurring incapacity may amount to total incapacity under the terms of the SRP; and - Whether Applicant’s condition so qualifies. *IMF Administrative Tribunal Reports, Vol. III* ### 58. Respondent seeks support in the Word Bank Administrative Tribu- ### Respondent seeks support in the World Bank Administrative Tribunal’s decision in Courtney (No. 2) for the view that a participant who is able to perform some work, even if not on a sustained basis, is not eligible for disability retirement ### Precedent and legal standard: Courtney (No. 2) and comparators - Courtney (No. 2): medical evidence showed an illness successfully treated though a recurrence could not be ruled out; applicant claimed inability to undertake extensive travel and stressful situations that marked his full-time career with the Bank. - WBAT holding in Courtney (No. 2): - “The standard of reasonableness does not require that the participant should continue to be able to do exactly what he had been doing. If a staff member, for example, is unfit to travel but is capable of performing duties at headquarters which are compatible both with his experience and the Bank’s needs, then it cannot be concluded that he is totally and permanently incapacitated for any duty that he is reasonably called upon to perform and the requirement of the Retirement Plan is not met.” (Para. 33.) - Tribunal found the applicant “. . . could have still undertaken reasonable work assignments and, therefore, that he was not totally incapacitated.” (Para. 34.) - WBAT summary of Courtney (No. 2): “In Courtney (No. 2), the Applicant’s disability was not regarded as total because although it precluded him from continuing to travel for the Bank as part of his employment, it did not prevent him from performing other assignments that required no such travel.” (A, para. 13.) - Other WBAT rulings interpreting “on a sustained basis”: - Shenouda: Medical Advisor opined applicant was “'. . . currently incapacitated from performing on a sustained basis, any tasks that The Bank might reasonably ask of her,'” leading WBAT to conclude incapacity at the time was total. (Para. 18.) - Ms. “J”: Medical Advisor advised Ms. “J” “. . . currently lacks the residual functional capacity to perform, on a sustained basis, intensive repetitive arm and hand functions.” ### Factual contrasts and frequency/periodicity of impairment - Courtney facts included occasional teaching and consultancy contradicting alleged unemployment. (Para. 31.) - Central question: whether performance of some work (even intermittently) is analogous to Ms. “K”’s facts, or whether Ms. “K”’s inability occurred with such frequency, severity, or unpredictability as to render her totally incapacitated for duties the Fund might reasonably call upon her to perform. - Administration Committee findings regarding Ms. “K”: - On review: “. . . it is within [Ms. ‘K’]’s capacity to perform the duties required of Staff Assistants.” - Initial Decision: “. . . return to the workplace was no longer a viable option because the person was reluctant to return to work and co-workers were fearful of her behavior.” (Administration Committee Final Minutes, March 1, 2001.) - Many workplace accommodations had already been made; working at home was considered and rejected. ### Medical evidence and divergent expert conclusions - Medical Advisor and reviewing psychiatrist observed recurrent nature of Ms. “K”’s symptoms and addressed impact on job performance: - Medical Advisor (report of January 26, 2001): Ms. “K”’s “. . . erratic emotional storms have resulted in people in the workplace becoming wary of her,” concluding her psychiatric disorder “. . . impairs [her] ability to successfully perform, on a sustained basis, collaborative tasks. . . .” At the same time he stated it “does not totally incapacitate” her from performing tasks the IMF might reasonably ask of her. - Reviewing psychiatrist (report of August 25, 2001): “. . . this patient would be periodically hampered from performing adequately in the workplace, but not permanently.” (report of August 25, 2001.) He further noted “. . . the patient finds it intermittently difficult to work in groups and groups find it intermittently difficult to work with the patient. . . .” and concluded “. . . this is not a consistently disabling condition. . . . in general, the patient seems to be able to do her work.” (report of September 5, 2001.) - Treating psychiatrist (report of June 15, 2001): opined Ms. “K”’s medical status “. . . not only totally incapacitate[s] her from performing tasks that the IMF might reasonably ask of her, but from performing a job anywhere else.” - Apparent tensions: - Medical Advisor’s January 26, 2001 report also repeatedly stated Ms. [“K”] was “unfit” to perform the functions of her position and that her condition “is permanent in that she will not be able to return to the IMF and perform satisfactorily.” - Reviewing psychiatrist juxtaposed “technical” competence with practical workplace tolerability: “Although technically she could do any job within the IMF, on a practical level it would be very difficult for her to work within a vocational context . . . and [it] would be very difficult for the organization to tolerate her behavior. . . . She is technically not disabled, but both she and any organization would find it hard to work together.” (report of August 25, 2001.) - Reviewing psychiatrist later: symptoms do not “. . . formally disable her from work, but . . . make it very difficult to work with her and for her to work with others.” (emphasis supplied.) ### Role of decisionmakers and evidentiary weight - SRP provisions and procedure: - SRP Section 4.3(a): a participant in contributory service shall be retired on a disability pension “. . . on the recommendation of the Administration Committee and the certification of a physician or physicians designated by the Administration Committee.” - SRP Sections 4.3(c) and (d): participants receiving disability retirement are subject to periodic reassessment of their eligibility. - GAO No. 16 and separation: - GAO No. 16 contemplates SRP participants separated on medical grounds who will not qualify for disability retirement. - Section 11.02 of GAO No. 16 requires that separation not be implemented until a determination on disability retirement under the SRP has been made; separation for medical reasons cannot determine entitlement to a disability pension. - Tribunal’s standard of review: - Tribunal must consider whether the Administration Committee’s decision is supported by the weight of the evidence. - Appropriate factors: a) internal consistency of physicians’ reports (separating observations from ultimate conclusions), and b) whether the Administration Committee drew reasonable conclusions from the evidence. - Precedent on deference: - Shenouda: WBAT reversed Pension Benefits Administration Committee’s denial of disability retirement where the Committee’s decision was “contrary to the clear weight of the evidence.” (Paras. 22–24.) - WBAT has cautioned that physicians’ views on disability “are opinions and not facts.” (Courtney (No. 2), para. 32.) - Reviewing psychiatrist distinguished his view from treating psychiatrist: “[the treating psychiatrist] feels that she is totally disabled for all work and I do not.” (report of November 11, 2001.) Tribunal must separate observations from ultimate opinions when weighing reports. ### Diagnostic focus and clinical prognosis - Diagnostic assessments for Ms. “K”: - Reviewing psychiatrist and Medical Advisor: multiple psychiatric problems; diagnoses include depression secondary to borderline personality disorder and possibly bipolar disorder. (reports of August 25, 2001 and September 5, 2001.) - Treating psychiatrist: “major depressive disorder recurrent, severe,” noting major depressive episodes over the preceding six years. (report of June 15, 2001.) - Medical Advisor noted history of “depressive episodes resulting in suicide attempts.” (report of January 26, 2001.) Medical Advisor also characterized recurrent depression as “in remission,” based on an earlier evaluator. (report of January 26, 2001.) - Medical Advisor later opined “[m]edication had controlled the depressive aspects of this mental condition.” (report of April 25, 2002.) - Clinical context for borderline personality disorder (BPD) (U.S. National Institutes of Health publication quoted): - BPD described as “a serious mental illness characterized by pervasive instability in moods, interpersonal relationships, self-image, and behavior.” - “There is a high rate of self-injury without suicide intent, as well as a significant rate of suicide attempts and completed suicide in severe cases.” - “Patients often need extensive mental health services, and account for 20 percent of psychiatric hospitalizations.” - BPD often co-occurs with bipolar disorder, depression, anxiety disorders, substance abuse, and other personality disorders. - Treatments for BPD have improved in recent years; group and individual psychotherapy are at least partially effective for many patients. Within the past 15 years, dialectical behavior therapy (DBT) was developed specifically to treat BPD and has looked promising in treatment studies. Pharmacological treatments may be prescribed for specific target symptoms. ### Key factual and procedural takeaways - Legal/policy delimitation: - Disability retirement under the SRP is intended for the most extreme medical conditions rendering an individual totally incapable of performing functions within the organization; eligibility standard for disability retirement is higher than for other benefits because it entails a “lifelong commitment by the Fund.” (text) - Evidentiary tensions that the Tribunal must resolve: - Conflicting medical opinions about whether incapacity is total or intermittent but severe. - Internal inconsistencies within single physician reports (e.g., statements that a participant is “unfit” and descriptions that do not reach “total incapacitation”). - The significance, if any, of prior administrative separation on medical grounds for assessing entitlement to disability retirement, given GAO No. 16 and SRP procedural sequencing. - Analytical approach required of the Tribunal: - Weigh internal consistency of physicians’ reports and distinguish observations from ultimate conclusions. - Assess whether the Administration Committee’s factual inferences and final determination are reasonable in light of the medical evidence and applicable SRP/GAO rules. *IMF Administrative Tribunal, Judgment No. 2003-2 (Ms. “K”), IMF Administrative Tribunal Reports, Vol. III.* ### 74. The Final Minutes of the Committee’s deliberations on Ms. “K”’s ### imfat-3 - 74. The Final Minutes of the Committee’s deliberations on Ms. “K”’s ### Committee deliberations and moral-hazard reasoning - The Administration Committee’s Final Minutes, May 9, 2002 record that “[t]he Committee agreed” that “. . . there was a certain moral hazard in granting a disability pension to a person who had an apparent treatable personality disorder as opposed to an incapacitating mental illness.” (Emphasis supplied.) - During the discussion the Minutes report: - a member “. . . asked whether the condition was not an illness and the Medical Advisor reiterated that it was a character disorder reflecting the participant’s difficulties in relating to other people.” (Id.) - when another member remarked that the participant “seemed very sick,” the Medical Advisor “asked rhetorically if a person does not get along with others should they qualify for a disability pension.” (Id.) - a Committee member observed that “. . . it is not appropriate to grant a disability pension simply because a person cannot or does not want to work within the organization’s structure and deal with other staff.” (Id.) - The Final Minutes on review note that “. . . her condition can be controlled with prescription drugs.” (Administration Committee’s Final Minutes, May 9, 2002.) ### Medical Advisor and psychiatric reports: treatment, prognosis, and consistency - Medical Advisor’s initial report of January 26, 2001: - treatment of borderline personality disorder “may be difficult,” and Ms. “K” had not undergone psychotherapy of “sufficient intensity and frequency” to treat the condition. - “Although intensive therapy would be expected to lessen the negative consequences of her characterologic disorder; given her personality type, she is unlikely to substantially commit herself to long-term intensive psychotherapy.” (Emphasis supplied.) - Medical Advisor’s final report of April 25, 2002: - reaffirmed that “intensive psychotherapy” would be expected to “lessen” the negative consequences of the disorder on workplace functioning. - stated that “[m]edication had controlled the depressive aspects of this mental condition [i.e. borderline personality disorder].” - NIH Publication No. 01-4928 and material attached to Applicant’s pleadings: psychotherapy is often the treatment of choice and medications may stabilize mood swings; psychotherapy is at least partially effective in many cases and medication may help depressed mood. - Noted inconsistency: Administration Committee Final Minutes do not contain any discussion of psychotherapy as an element in her treatment despite Medical Advisor’s reports citing its importance. ### Tribunal finding on total incapacity - After review, the Administrative Tribunal concludes the Applicant is totally incapacitated, mentally, to perform duties reasonably called upon in the Fund, namely those of Staff Assistant, particularly because her mental condition renders her unable to collaborate constructively with co-workers. ### Whether the total incapacity is “likely to be permanent” - SRP requirement: disability must be total and “likely to be permanent (that is, not transitory).” (SRP Section 4.3 (a) (ii).) - Shenouda factors for permanency: “the extent to which the Applicant’s condition was or was not improving over time, whether it could be expected to respond to medication, exercise, and the like, and whether the Applicant was reasonably complying or not with such a regimen.” (Shenouda, Para. 22.) - Evidence and positions: - Medical Advisor’s initial report (January 26, 2001): Ms. “K”’s “. . . condition is permanent in that she will not be able to return to the IMF and perform satisfactorily.” - Administration Committee Final Minutes, March 1, 2001: a return to the workplace was “no longer a viable option.” - Treating psychiatrist (June 15, 2001): conditions are “. . . permanent in that they not only incapacitate her from performing tasks that the IMF might reasonably ask of her, but from performing a job anywhere else.” - Reviewing psychiatrist (August 25, 2001): “. . . this patient would be periodically hampered from performing adequately in the workplace, but not permanently.” - Medical Advisor’s final report (April 25, 2002): did not opine specifically on likely permanency; cited agreement with the reviewing psychiatrist that Ms. “K” is “capable of performing her job functions” and hence was not totally disabled. - Tribunal conclusion: the Administration Committee’s initial decision that Ms. “K” was not permanently incapacitated “runs counter to the weight of the evidence.” ### Compliance with treatment and voluntariness issues - Administration Committee on review (Final Minutes, May 9, 2002) recorded that the Medical Advisor “. . . noted that the participant frequently changes physicians and does not fully comply with prescribed medical regimes. . . . Treatment is difficult because the participant can but does not comply with the treatment regimes. . . . It was not clear why the person stopped taking medication.” The Committee noted the Plan cannot require treatment but was “not required to grant a disability pension to an individual who ‘refuses treatment.’” (Id.) - Medical Advisor’s characterization of the “key to determining incapacity”: - whether there is a volitional problem as with thought disorders where the person “has no choice because they are confused, disoriented or delusional.” (Id.) - concluded: “In this case, the person’s thinking is not disordered and they do have a choice to comply or not to comply with a treatment regime which could help her. . . . She could follow a treatment regime by taking prescription drugs to control her behavior. There is no reason in the record why she cannot do so.” (Id.) - contemporaneously “further elaborated that the participant’s condition reflected poor impulse control.” (Id.) - Tribunal’s assessment of the record on compliance: - record lacks evidentiary support for findings that: a) Ms. “K” was noncompliant with prescribed treatment, b) she frequently changes physicians, or c) she had stopped taking medication. - medical records show she had been under psychiatric care and prescribed numerous medications; no notations that she was not taking medications. - reviewing psychiatrist’s November 11, 2001 review revealed Ms. “K” had remained under treatment of the treating psychiatrist for more than a year. - Medical Advisor’s initial view that she “has never undergone long-term psychotherapy” and that recent therapy “has not been of sufficient intensity and frequency to treat her character disorder” is not equivalent to a finding of noncompliance. - the Tribunal finds insufficient support to conclude noncompliance; even if noncompliance existed, it may have been attributable to the disorder itself (e.g., poor impulse control, being “probably overwhelmed at times by her moods and emotions” (reviewing psychiatrist’s report of August 25, 2001)) and could be regarded as “reasonable” given the nature of the illness. ### Age, remaining working life, illness duration, and prospects for improvement - Respondent’s argument: at age 52 (Ms. “K”’s age at the time of the Administration Committee’s Decision on Review), Applicant has approximately thirteen years of remaining working life until the Fund’s mandatory retirement age of 65 and has not shown this is insufficient time for treatment. - Precedent and interpretive guidance: - WBAT (Shenouda) treated proximity to normal retirement age (62 under the Bank’s Plan) as relevant because disability retirees are subject to periodic reassessment up to normal retirement age. (Shenouda, para. 33; compare SRP Section 1.1(k) where for other purposes “normal retirement date” is defined as age 62.) - In A, WBAT reversed a decision denying permanency where the medical records showed a severe and long-standing psychiatric condition and concluded the incapacity was “likely to be permanent.” - Evidence of long-standing condition in Ms. “K”’s record: - Medical Advisor noted a history of depressive episodes. - treating psychiatrist dated these as extending over the preceding six years. - Ms. “K” recounted to another physician that she had been depressed most of her life, although “usually not ‘badly’.” - reviewing psychiatrist (September 5, 2001): psychiatric symptoms “. . . emanate from biologic, developmental characterologic constructs endemic to her personality and neurochemistry.” - Administration Committee Final Minutes, May 9, 2002: Medical Advisor stated records indicate the condition existed at an early developmental period and “. . . the condition . . . develops over a person’s life time.” - Medical Advisor’s consistent view: psychotherapy would be expected only to “lessen” negative consequences, offering limited hope for full remediation. (Reports of January 26, 2001 and April 25, 2002.) ### Tribunal synthesis and legal framing - The Tribunal weighs: - the Medical Advisor’s and treating psychiatrist’s views that the condition is long-standing and may be permanent or unlikely to be fully remediated; - the lack of evidentiary basis in the record for the Committee’s factual findings about noncompliance and frequent physician changes; - the possibility that any failure to comply may itself be a manifestation of the disorder (e.g., poor impulse control, overwhelming moods). - The Tribunal finds the Administration Committee’s on-review conclusion that Ms. “K”’s condition was “treatable and so is not a total and permanent disability as required by the Plan” to be inconsistent with the weight of the medical evidence and with applicable precedent on permanency assessment. *Judgment No. 2003-2 (Ms. “K”), IMF Administrative Tribunal Reports, Vol. III* ### 95. The immediate question for decision is whether Applicant’s incapac- ### JUDGMENT NO. 2003-2 (MS. “K”) ### Immediate question: permanence of Applicant’s incapacity - The immediate decision question was whether Applicant’s incapacity is the result of a long-standing, intractable condition for which she has reasonably but unsuccessfully attempted treatment and hence is “likely to be permanent” or whether the Administration Committee’s conclusion that “. . . since her condition can be controlled with prescription drugs even though there is expected to be recidivism, she is not permanently disabled.” (Administration Committee Final Minutes, May 9, 2002) should be sustained. - The Tribunal concluded that the Applicant’s incapacity is “likely to be permanent.” ### Procedural fairness and standard of review - The Tribunal applies a standard of review that includes assessing whether the Administration Committee’s decision was taken in accordance with fair and reasonable procedures. - The IMFAT’s authority to review procedural fairness is found in Article III, second sentence, requiring application of “. . . the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.” - The Statutory Commentary emphasizes the general applicability of principles such as the right to be heard (the doctrine of audi alteram partem). - Precedents cited: - The World Bank Administrative Tribunal: decisions may be overruled if due process requirements are not observed (Shenouda, para. 36). - IMFAT prior authorities: Ms. “C” (procedural deficiency awarded compensation while sustaining contested decision), Mr. “A” (IMFAT Judgment No. 1999-1), and Mr. “P” (No. 2), para. 152, reaffirming the importance of reasonable notice and opportunity to be heard. ### Procedural deficiencies and contested practices in Ms. “K”’s case - Applicant’s principal procedural complaints summarized: - “[T]he information provided the Committee excluded applicant’s [i]nformation in its entirety.” - Medical experts were not jointly selected to be truly “independent.” - The Committee considered a hearsay report of the findings of one of the reviewing physicians. - Respondent’s position: - SRP terms contemplate that the Administration Committee’s decision must be based on, and consistent with, the expert advice of its Medical Advisor. - It was appropriate to consider treating and reviewing physicians’ opinions and to withhold sensitive underlying treating records from Committee members. - Applicant did not demonstrate bias by reviewing physicians or impropriety in accepting a summary by external counsel of an infectious disease specialist’s report. - Applicant did not show that any material information affecting the decision was omitted from consideration. - Rule VI (Proceedings) of the Administration Committee’s Rules of Procedure (full text reproduced in the source) grants the Committee discretion to: - “inquire about all information it needs for an equitable consideration of a Request,” rely on written submissions, or convene oral hearings and decide attendance; - provide reasonable notice of proceedings (except as in Rule II, paragraph 5); - determine confidentiality and provide summaries of confidential evidence prepared by the Secretary when waiver of confidentiality cannot be obtained; - allow representation by counsel at each party’s expense; - treat deliberations and minutes as confidential unless the Committee decides otherwise. - Concerns about implementation in Ms. “K”’s case: - Whether the Committee afforded Applicant sufficient and timely opportunity for rebuttal under Rule VI. - Rule VII, para. 1 requires that “Each Decision shall be in writing, stating the reasons on which it is based and any action that the Committee may take or recommend.” The Committee’s initial Decision denying disability retirement did not set forth any reasons, merely reciting the standard and announcing denial—appearing to violate the Rule and denying meaningful opportunity for response. - Rule VII, para. 3 provides that “Upon request, the Secretary of the Committee will furnish to the Requestor copies of any non-confidential documents and a summary ... of confidential evidence that it considered in making its decision.” Applicant apparently did not request such materials; however, prior cases show that post-decision summary review may be of limited value because it does not permit response prior to the decision. - The role of external counsel: Final Minutes record external counsel replying to whether the condition would be considered disabling by other organizations (“it would not be considered disabling”), raising concern whether such an unsupported generalization could improperly influence deliberations. ### Tribunal observations and recommendations for future procedure - The Tribunal decided Ms. “K”’s Application in her favor on substantive grounds and therefore did not need to resolve her procedural complaints, but offers guidance: - The Administration Committee may consider enabling an applicant to submit observations in a current and timely way upon any medical reports and opinions submitted to or rendered by the Medical Advisor in the case. - The Tribunal’s view: the applicant is entitled to see and comment upon all medical reports and opinions submitted to or rendered by the Medical Advisor in the case; Committee members should be entitled to review those medical reports to weigh fully the views of treating and reviewing physicians and evaluate the Medical Advisor’s conclusions. - Consideration of a Board of Medical Advisors (tripartite model) similar to other international organizations (e.g., ILO and UNESCO): - One member designated by the Applicant, - A second by the Administration Committee, - A third by agreement between the two designated members. - The tripartite model appears in the Fund’s internal law for medical separation at the Fund’s initiative (GAO No. 13, Rev. 5 (June 15, 1989), Annex I, excerpt cited). - The advice of the Medical Advisor (or Board) should be confined to medical questions and should not extend to the ultimate conclusion whether the applicant is totally and permanently incapacitated; that ultimate conclusion should be the Administration Committee’s function. - The applicant should be permitted to comment upon any statements of Fund officers regarding the applicant’s capacity to perform any particular duty that the Fund might maintain the applicant could reasonably be called upon to perform. ### Remedies and orders - Applicant’s requested relief: - a) that the Tribunal order that she be granted a disability pension retroactively; - b) that “all funds deducted from her service accounts be recredited”; - c) legal costs. - Respondent’s answer: no credits have been deducted from any accounts of Applicant and Applicant has not elaborated what credits she believes should be restored. - Tribunal’s remedial authority: Article XIV (full text reproduced in the source) provides that: - If the Tribunal concludes 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 measures other than payment of money, the Tribunal shall fix an amount of compensation payable if the Managing Director, within one month of notification of the judgment, decides measures shall not be implemented; compensation shall not exceed the equivalent of three hundred percent (300%) of the current or last annual salary, except in exceptional cases where higher compensation may be ordered with specific reasons. - The Tribunal may award reasonable legal costs, in whole or in part, taking account of “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.” - When Fund-prescribed procedures for decision-making have not been observed, the Tribunal may adjourn proceedings at the Managing Director’s request to institute required procedure or corrective measures for a time certain. - Tribunal orders in this case: - The decision of the Administration Committee denying a disability pension to Ms. “K” is rescinded. - The Tribunal orders that the disability pension be granted. - The Tribunal awarded no separate compensation for procedural unfairness because it was unnecessary to decide those complaints. - On legal costs, the Tribunal notes Section 4 of Article XIV and precedent (Ms. “C” partial costs) but makes no separate award detailed in the reproduced text. *IMF Administrative Tribunal, Judgment No. 2003-2 (Ms. “K”) — findings, procedural analysis, recommendations, and orders.* ### 119. The Tribunal has found Ms. “K”’s Application on the merits to be ### Judgment excerpts: Ms. “K” (disability pension) and Mr. “R” (No. 2) (housing/security claim) ### Tribunal decision — Ms. “K” - The Tribunal found Ms. “K”’s Application on the merits to be well-founded. - Pursuant to Article XIV, Section 4 of the Statute, the Fund shall pay Applicant the reasonable costs of her legal representation. - The Tribunal will assess the amount of compensable legal costs following submission of a statement of costs by Applicant and an opportunity for comment by the Fund, according to a schedule to be transmitted with the Judgment. - Decision (FOR THESE REASONS): The Administrative Tribunal of the International Monetary Fund unanimously decides that: - 1. The decision of the Administration Committee denying Applicant a disability pension is rescinded and it is ordered that a disability pension be granted to Ms. “K”, retroactive to the date of Applicant’s retirement. - 2. The Fund shall pay Applicant the reasonable costs of her legal representation, in an amount to be assessed by the Tribunal following further submissions of the parties according to the schedule transmitted with this Judgment. - Signatories and formalities: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar - Washington, D.C. September 30, 2003 ### Case introduction — Mr. “R” (No. 2) - Proceedings: The Administrative Tribunal met on December 9 and 10, 2004, composed of Judge Stephen M. Schwebel (President) and Judges Nisuke Ando and Michel Gentot (Associate Judges), to adjudge the case brought by Mr. “R”, a retired staff member. - Subject of the Application: Mr. “R”, former Director of the Joint Africa Institute (JAI) in Abidjan, Côte d’Ivoire, contested a Department of Human Resources decision denying reimbursement of security expenses he alleged were incurred indirectly by electing to live in a hotel rather than a private residence at his overseas post. - Core contention by Applicant: The Fund’s housing allowance for overseas Office staff fails to take into account differences in security costs between Washington, D.C. and the duty station, except where the Fund directly pays for security enhancements or protection to the overseas residence; applicant maintained he was unfairly penalized for renting quarters (Hotel Ivoire) that included security services in the rental rate and sought reimbursement equal to estimated guard-service costs had he lived in a private residence. ### Procedural history and filings - Application filed: September 26, 2003 (Registrar advised deficiencies and Applicant corrected within the fifteen-day cure period; Application considered filed on original date). - Application transmitted to Respondent: October 16, 2003. - Registrar issued summary within the Fund: October 22, 2003 (pursuant to Rule XIV, para. 4). - Respondent’s Answer filed: December 1, 2003. - Applicant’s Reply filed: December 24, 2003. - Fund’s Rejoinder filed: February 4, 2004. - Additional documents filed by Applicant at Registrar’s request: August 4, 2004. - The Tribunal decided not to hold oral proceedings. ### Relevant factual background - Employment history: Mr. “R” had been a Fund staff member since 1981; appointed JAI Director in July 1999; took up duties as JAI Director on September 20, 1999. - Institutional context: The JAI is considered one of the Fund’s seven overseas Offices; Resident Representatives in Abidjan received more generous benefits under Fund policies. - Benefits contested earlier: Applicant previously challenged denial of an overseas assignment allowance and a housing allowance equivalent to the Resident Representative; that earlier Application resulted in IMFAT Judgment No. 2002-1 (March 5, 2002), in which the Tribunal rejected Applicant’s contentions regarding parity of benefits. - HRD interim actions: HRD undertook an overall review of benefits for overseas staff; a hardship allowance was provisionally granted to Applicant pending the review. ### HRD and management decisions affecting Applicant - HRD Director (August 1999) recommended, on an exceptional basis, a housing allowance equal to the estimated cost of residing at Hotel Ivoire and cited estimated Fund savings on not providing security services if Applicant lived at the hotel: “Based on the estimated cost of providing security for the Resident Representative, this cost saving is estimated at $1,500 monthly, or $54,000 over the period of the assignment.” - Deputy Managing Director decision (relayed by Staff Benefits Chief by email of October 2, 2000): - Made permanent (and retroactive) the provisional hardship allowance. - Denied requests for (a) an overseas assignment allowance, and (b) an increased housing allowance. Applicant was informed: “There will be no change in the manner in which your housing allowance is computed and paid and, since you are living in a hotel, no security costs need to be covered.” - Applicant’s first Tribunal challenge (resulting in March 5, 2002 judgment) did not expressly raise reimbursement of security costs allegedly incurred by residing at the hotel. ### Security assessments, cost estimates, and HRD position - Applicant’s April 2, 2002 request to HRD: Requested recalculation of housing allowance to take into account security and utility costs; Applicant later estimated security costs over his three-year appointment as $54,000 (i.e. three times the annual guard service rate estimated by FSO). - HRD response (May 3, 2002): Stated housing allowance does not cover security costs but the Fund stands ready to cover necessary costs of providing security in locations where staff are placed; advised Applicant to raise security concerns with Acting Chief of the Field Security Office (FSO). - FSO Acting Chief memorandum (June 17, 2002) reported: - Support for Applicant’s choice to live in a hotel as “very practical and security-conscious.” - Observation that major international hotels “are normally staffed with security professionals, have comprehensive security programs, and are able to offer better overall protection than individual houses.” - Characterization that hotel security program costs “are not insignificant and are passed on to guests as an invisible part of the room rates.” - Estimated typical costs to make a private residence meet minimum essential security standards: - one time expense of approximately $10,000 for enhancements to the property, and - an annual guard service fee of up to approximately $18,000. - Statement: “The exceptional security measures raise the cost of living, whether at a private residence or at a hotel. Mr. [“R”] made a sound security decision by living at the hotel, and this factor should be considered in reviewing the standard allowances and his specific claim.” - HRD / Staff Benefits response to FSO and Applicant (July–November 2002): - Staff Benefits Chief: After considering the FSO memorandum, maintained that “these costs were not incurred… The Fund will pay for security costs incurred, but will not pay you for costs that were avoided due to your decision [to live at the hotel].” - Administrative review by HRD Director (November 27, 2002) sustained the Staff Benefits Chief’s decision, reiterating: - The housing allowance is not intended to cover security costs. - “In the event that the Fund’s security office considers security measures necessary for you or other Fund staff at the JAI, the Fund will pick up the cost.” - The FSO Acting Chief “made no recommendations for additional security measures. Based on this, [the Staff Benefits Chief] concluded correctly that no further action was required.” - If Applicant had chosen housing requiring guards or additional security equipment, the Fund would have paid for this; but because Applicant chose to live in a hotel where additional security measures were not needed, the policies do not provide for the Fund to pay a notional amount representing costs it might have paid to others. *Source: Administrative Tribunal of the International Monetary Fund (Judgment dated September 30, 2003; Judgment No. 2004-1, December 10, 2004).* ### 20. Mr. “R” submitted his Grievance on January 22, 2003. In a pre- ### JUDGMENT NO. 2004-1 (MR. “R” (NO. 2)) ### Procedural history and threshold rulings - Mr. “R” submitted his Grievance on January 22, 2003. - The Grievance Committee concluded in its Recommendation and Report of August 29, 2003 that it did not have jurisdiction because Mr. “R”’s complaint "represented a challenge to a Fund policy rather than a challenge to the consistency of its application in an individual case." - Mr. “R” filed his Application with the Administrative Tribunal on September 26, 2003. - The Tribunal considered whether the present Application is barred by res judicata under Article XIII, Section 2 of the Tribunal’s Statute, in light of Judgment No. 2002-1 (Mr. “R”). ### Applicant’s principal contentions - The data used by the Fund to calculate the housing allowance for overseas Office staff exclude security costs from housing costs; therefore "the housing allowance seriously underestimates the actual costs of housing at a duty station in which security is a significant concern." - The Fund offsets housing-allowance inadequacy for overseas staff who live in private residences by paying directly for security costs; but for staff who lease quarters already having security enhancements, the housing allowance is insufficient because rental expenses include the cost of security. Applicant contends his housing allowance as JAI Director was improperly calculated. - The Administrative Tribunal’s decision in Mr. “R” does not bar a recalculation claim. The first Application sought the same benefits as those granted the Resident Representative in Abidjan; because that first Application was denied, the problem of an ill-determined housing allowance is now raised. - Requested relief: compensation for the exclusion of security costs from the calculation of his housing allowance during his three-year term as JAI Director. Because precise assessment is not possible, compensation is estimated at the cost of guard services had Mr. “R” chosen private residence security: $1,500 per month multiplied by 36 months, equaling $54,000. ### Respondent’s principal contentions - The Application is barred by res judicata because the Tribunal already reviewed Applicant’s claim for an increased housing allowance in Mr. “R” (Judgment No. 2002-1). The present Application has the same purpose as the former one. - The current claim was encompassed within the first unsuccessful Application or, at minimum, could have been raised in the first case; the foundation in law—that the Fund allegedly abused its discretion concerning the benefits payable to the JAI Director—is substantially identical to the prior claim. - The Tribunal in Mr. “R” reviewed and upheld the Fund’s benefits classification scheme for overseas staff and management’s rejection of an exception to that scheme in Applicant’s case, including rejecting a recommendation that Applicant be paid an exceptional housing allowance based in part upon security costs avoided by Applicant’s hotel selection. - The memorandum from the FSO Acting Chief does not create previously unknown facts to constitute different claims. - Even if not barred by res judicata, the current Application should be denied because Applicant’s housing allowance was properly calculated in accordance with Fund policy and he "has received all of the benefits to which he was entitled under the housing policy for overseas Office Directors." - The challenge is to a regulatory decision; the Fund’s housing allowance and security policies are "reasonably related to their objectives" and do not represent an abuse of discretion. The Fund has "sound business reasons" for paying for security costs directly rather than including an allowance. - There is no difference between Resident Representatives and Office Directors regarding the Fund’s approach to security costs: "the Fund will take, at its expense, all security measures it considers necessary, but it will not pay any staff member for the value of security measures avoided because of his choice of accommodations." ### Tribunal’s analysis of res judicata and identity of claims - Article XIII, Section 2 of the Tribunal’s Statute: "Judgments shall be final, subject to Article XVI and Article XVII, and without appeal." Res judicata prevents relitigation of claims already adjudicated. - The Tribunal considered the "classic three identities—of person, cause and object" used by ILOAT and other international administrative tribunals to determine applicability of res judicata: identity of parties, identity of purpose (object), and identity of foundation in law (cause). - Parties: not disputed that the parties in the current and earlier proceedings are identical. - Object / outcome sought: Respondent argued the present suit seeks the same outcome as the original case—an increased housing allowance to cover actual housing costs in Abidjan (rent, furniture and security guards) and future parity with the Resident Representative. Applicant argued the prior litigation sought the Resident Representative perquisites, which did not include a housing allowance, and thus it would have been inconsistent then to seek both. - Tribunal’s view on purpose: The Tribunal found the purpose of the current claim is not the same as that earlier litigated. - First case purpose: challenge to the Fund’s decision not to accord Mr. “R” the same perquisites as the Resident Representative in Abidjan. - Current case purpose: contest the application of a Fund security policy that distinguishes between security costs directly incurred (paid by the Fund) and security costs indirectly incurred (not reimbursed), seeking either an interpretation of the housing allowance to take security costs into account or an interpretation of the Fund’s security "policy" to reimburse indirectly incurred security costs. - Cause / foundation in law: Respondent contended the legal foundation is the same (alleged abuse of discretion regarding benefits). The Tribunal noted that in the first Application Mr. “R” challenged management’s October 2, 2000 decision as discriminatory and the Tribunal analyzed nondiscrimination as a substantive limit on discretionary authority. - Scope of prior Tribunal review: In Mr. “R” the Tribunal characterized the October 2, 2000 decision as an "individual decision" whose content was to uphold the validity of a "regulatory decision" assigning differing benefits packages to different staff categories. The Tribunal did not rely on the October 2, 2000 statement that "since you are living in a hotel, no security costs need to be covered," nor did it address the argument that the housing allowance calculation unfairly excludes security costs in assessing differences between Washington, D.C. and the duty station. - The Tribunal in Mr. “R” reviewed whether Respondent abused its discretion by maintaining differing benefits policies for overseas Office Directors and Resident Representatives, asking "whether the reasons given by Respondent for the differential treatment of overseas Office Directors and Resident Representatives are supported by evidence and are rationally related to the purposes of the employment benefits at issue." - The Tribunal found some of the Fund’s justifications persuasive and others less so. The Tribunal acknowledged that "because of conditions in Côte d’Ivoire, serious security risks are faced by any staff member posted in that location, not only the Resident Representative," but nonetheless rejected the allegation of impermissible discrimination between the two staff categories, noting the Fund’s policy "is dependent on generalizations, i.e. generalizations about the living conditions in the locations in which ‘many’ Resident Representatives, as compared with the conditions in the countries in which ‘most’ overseas Office staff serves." *IMF Administrative Tribunal Reports, Vol. III — Judgment No. 2004-1 (Mr. “R” (No. 2))* ### 40. I n assessi ng t he preclusive effect of t he Tribu nal’s Judg ment i n Mr. “R” ### 40. In assessing the preclusive effect of the Tribunal’s Judgment in Mr. “R” ### Preclusive effect and res judicata - The Tribunal’s earlier Judgment in Mr. “R” did not differentiate in its reasoning between the overseas assignment allowance and the housing allowance, resting instead on the permissibility of the difference in the total package of benefits accorded to the two categories of staff. - The Tribunal did not rely specifically on security as a justification for differing benefits; it cited other factors, in particular “the incentive to recruitment of Resident Representatives that is provided by the overseas assignment allowance.” (Para. 64.) - A stronger res judicata argument might be drawn from the Tribunal’s prior decision respecting the individual decision to deny Mr. “R” an exceptional housing benefit that would have covered his Hotel Ivoire residency. The Tribunal in the earlier proceeding ratified Management’s rejection of HRD’s recommendation, finding the decision “reasonable and one within the ambit of the Fund’s managerial discretion.” (Mr. “R”, para. 65.) ### Distinct legal bases for the two claims - The earlier complaint focused on parity of benefits between Resident Representatives and Office Directors generally, including security concerns tied to postings in developing countries and the adequacy of the hardship allowance. (Mr. “R”, para. 19.) - The present claim focuses on a different alleged inequity: unequal treatment arising from meeting security costs differently depending on whether the Fund pays those costs directly or whether the staff member incurs them indirectly (for example, via hotel bills that subsume security protection). - The Tribunal concluded Mr. “R”’s current claim is not debarred by res judicata because the question of paying security costs indirectly (through hotel charges) was not addressed in the earlier Judgment. ### Individual decision under review - Central question: Was the decision to deny reimbursement of security costs indirectly incurred by Mr. “R” consistent with applicable Fund policy? Specifically: - a) Calculation of the housing allowance for overseas Office staff. - b) Provision of residential security to staff members posted abroad. - Applicant’s complaint: the housing allowance did not reflect the cost difference between Washington, D.C. and the duty station because the Fund’s policy denies reimbursement for security expenses “avoided” by choice of accommodation. - Applicant relied on the HRD Director’s statement that the Fund “. . . stands ready to cover the necessary costs of providing security in all locations where staff are placed around the world. In the event that the Fund’s security office considers security measures necessary for you or other Fund staff of the JAI, the Fund will pick up the cost.” - The Tribunal found that the security costs were indeed “incurred,” albeit indirectly, and saw no cogent reason why the Fund should be absolved of those costs simply because they were indirectly rather than directly incurred. Equal treatment in the right to physical security should govern. The Tribunal recognized the factual singularity of Mr. “R”’s circumstances. ### Regulatory decision question and transparency - The Fund characterized its residential security policy as a “regulatory decision” and asserted Applicant’s challenge was to that regulatory decision. - The Tribunal’s precedent requires for a valid regulatory decision: a decision taken by an authorized organ, laid down in a published official document with a determinable effective date, and of which staff have been given reasonable notice (see Ms. “B”, para. 39). - Evidence indicated the security policy appeared in correspondence with Mr. “R” and in an HRD benefits review (“Resident Representative Program: Review of Benefits and Incentives,” February 18, 2000) but there was no evidence the policy was communicated to Fund staff at large. - The Tribunal suggested the Fund may wish to announce and circulate a clear and comprehensive statement of its policy on meeting necessary security costs for personnel posted abroad. - Even if the Tribunal lacked jurisdiction to review the policy as a regulatory decision, it was competent to assess the fairness of the policy’s application as an individual decision. ### Remedies and monetary approximation - The Tribunal invoked Article XIV, Section 1 and rescinded the Fund’s decision to deny payment of security costs indirectly incurred by Mr. “R”. - Applicant acknowledged difficulty in assessing security costs embedded in hotel charges. He requested as a proxy the guard services cost that would have been required for a private residence: $1,500 per month multiplied by 36 months, equaling $54,000. - Supporting factual estimations on the record: - HRD Director’s August 1999 correspondence cited $1,500 per month as the cost savings to the Fund of not providing security to a private residence (based on Resident Representative security costs in Abidjan). - The Acting Chief of the Field Security Office (June 2002) estimated “typical costs to achieve . . . minimum essential standards” for private expatriate residences in Abidjan as a one time expense of approximately $10,000 for enhancements to property plus an annual guard service fee of approximately $18,000 ($1,500 per month). - The Tribunal concluded that $54,000 is the most reasonable approximation the record affords of the security costs incurred by Mr. “R” and prescribed payment of $54,000 to Applicant to correct the effects of the rescinded decision. ### Formal decisions - The Tribunal unanimously decided: - 1. Mr. “R”’s current claim is not debarred by reason of res judicata. - 2. The decision of the Fund to deny payment of security costs indirectly incurred by Mr. “R” is rescinded. *International Monetary Fund Administrative Tribunal, Judgment No. 2004-1 (Mr. “R” (No. 2))* ### 3. The Fund shall pay the sum of $54,000 to Mr. “R” as the most reason- ### 3. The Fund shall pay the sum of $54,000 to Mr. “R” as the most reasonable approximation that the record affords of security costs incurred by him in the course of his assignment in Abidjan. ### Judgment and remedial order (Mr. “R”) - The Fund is ordered to pay the sum of $54,000 to Mr. “R” as the most reasonable approximation that the record affords of security costs incurred by him in the course of his assignment in Abidjan. - Signatories: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Celia Goldman, Registrar. - Location and date of entry: Washington, D.C., December 10, 2004. ### Related Orders assessing compensable legal costs (summary of principles and results) - Legal costs awards are governed by Article XIV, Section 4 of the Tribunal’s Statute, which provides in relevant part: - “If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant’s counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates.” - Order No. 2003-1 (Ms. “J”) (Assessment of compensable legal costs pursuant to Judgment No. 2003-1) (December 23, 2003): - The Tribunal accepted Applicant’s counsel’s statement of costs as a valid representation of costs “incurred by the applicant in the case” and declined to inquire into the particular fee arrangement between Applicant and counsel. - The Tribunal declined to deduct any sum for consultation attributable to the Applicant’s workers’ compensation claim where that claim was of an “intersecting nature” with the disability retirement claim. - The Tribunal assessed the reasonable costs of Applicant’s legal representation in the full amount submitted: $16,434.32. - Signatories and date: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Celia Goldman, Registrar. Washington, D.C., December 23, 2003. - Order No. 2003-2 (Ms. “K”) (Assessment of compensable legal costs pursuant to Judgment No. 2003-2) (December 23, 2003): - The Tribunal accepted Applicant’s counsel’s statement of costs as a valid representation of costs “incurred by the applicant in the case” and declined to inquire into the particular fee arrangement between Applicant and counsel. - The Tribunal assessed the reasonable costs of Applicant’s legal representation in the full amount submitted: $14,817.30. - Signatories and date: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge; Celia Goldman, Registrar. Washington, D.C., December 23, 2003. ### Key jurisprudential findings and principles reflected in the volume (indexed material) - Costs and remedies - The Tribunal exercises remedial authority under Article XIV to award reasonable legal costs where an application is found well-founded in whole or in part. - The Tribunal will accept counsel’s itemized statement of costs as a valid representation of costs “incurred by the applicant in the case” and will not generally inquire into private fee arrangements between applicant and counsel. - No deduction will be made for work on matters that are of an “intersecting nature” with the prevailing claim (e.g., Workers’ Compensation consultations intersecting with a disability retirement claim), where the entries reasonably reflect concurrent consideration of both matters. - Disability retirement and procedural fairness - Disability retirement decisions are subject to a heightened standard of review reflecting the Tribunal’s appellate authority; procedural fairness (reasonable notice and opportunity for rebuttal) is a significant element of review. - Separation for medical disability does not, by itself, determine entitlement to a disability pension, but factual circumstances surrounding separation may be considered in assessing the soundness of a disability retirement decision. - Equal treatment and staff security costs - The Tribunal has found that differing treatment of residential security costs incurred directly versus indirectly by overseas staff is inconsistent with the principle of equal treatment and with staff members’ fundamental right to enjoy physical security. - Remedies can include rescission of decisions denying reimbursement of residential security costs and reimbursement according to the most reasonable approximation afforded by the record. - Standard of review and scope - The Tribunal distinguishes standards of review according to the nature of the decision: acts of managerial discretion are reviewed under a less rigorous “arbitrary and capricious” standard, while quasi-judicial decisions (e.g., disability retirement, disciplinary matters) attract heightened scrutiny. - The Tribunal’s deference is at its height when reviewing “regulatory decisions,” especially policy decisions of the Executive Board. ### Representative figures and exact amounts referenced - Security costs award to Mr. “R”: $54,000. - Legal costs awarded to Ms. “J”: $16,434.32. - Legal costs awarded to Ms. “K”: $14,817.30. - Dates of Orders No. 2003-1 and No. 2003-2: December 23, 2003. - Date of judgment awarding $54,000 to Mr. “R”: December 10, 2004. *Administrative Tribunal of the International Monetary Fund (IMFAT), Judgment and Orders as indicated (December 10, 2004; December 23, 2003).* ### 1. The Tribunal shall be competent to pass judgment upon any ### imfat-3 - 1. The Tribunal shall be competent to pass judgment upon any ### Competence and scope of the Tribunal - 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. - 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 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. ### Definitions and procedural terms (Article II and related sections) - “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 as 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. ### Jurisdictional competence issues and exhaustion of administrative review (Article IV–V) - Any issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute. - 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 channels of administrative review for the settlement of disputes. - Exhaustion of administrative review where a Fund procedure for complaints and grievances exists: - 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; or - 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. - Exhaustion of administrative review where that specific procedure does not exist: - 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; or - 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 to have been exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal. ### Time limits for filing applications (Article VI) - An application challenging the legality of an individual decision shall not be admissible if filed more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision. - 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; provided that 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 such regulatory decision. - In exceptional circumstances the Tribunal may, if it considers the delay justified, waive the time limits prescribed in Sections 1 or 2 to receive an otherwise inadmissible application. - The filing of an application shall not have the effect of suspending the implementation of the decision contested. - No application may be filed or maintained after the applicant and the Fund have reached an agreement on the settlement of the dispute giving rise to the application. ### Composition, appointment, and independence of Tribunal members (Articles VII–VIII) - Appointment and term: - 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 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 is permitted in accordance with the procedures for appointment. - A member appointed to replace a member whose term has not expired shall hold office for the remainder of his predecessor’s term. - Conflicts and recusal: - Any member who has a conflict of interest in a case shall recuse himself. - When an associate member is unable to hear a case for any reason, 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 for that case and shall be replaced by an alternate as associate member. - The Managing Director shall terminate the appointment of a member who, in the unanimous opinion of the other members, is unsuited for further service. - Independence: - Members shall be completely independent in the exercise of their duties; they shall not receive any instructions or be subject to any constraint. - In the performance of their functions they shall be considered as officers of the Fund for purposes of the Articles of Agreement of the Fund. ### Administrative arrangements, Secretariat, and expenses (Article IX) - 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, shall be under the authority of the President and shall not disclose confidential information received in the performance of their duties. - The expenses of the Tribunal shall be borne by the Fund. ### Evidence, procedure, and representation (Article X–XII) - Evidence and confidentiality: - The Tribunal may require production of documents held by the Fund, except that the Managing Director may withhold evidence if he determines that 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. - The applicant’s allegations concerning the contents of any document so withheld shall be deemed to have been demonstrated in the absence of probative evidence to the contrary. - The Tribunal may examine witnesses and experts, subject to the same qualification. - Rules of Procedure: - Members shall, by majority vote, establish the Tribunal’s Rules of Procedure, which shall include provisions concerning presentation of applications; intervention by persons whose rights may be affected; presentation of testimony and other evidence; summary dismissal of applications without disposition on the merits; and other matters relating to the functioning of the Tribunal. - 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. - Sessions and hearings: - 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. ### Decisions, remedies, costs, and compensation (Articles XIII–XV) - Decisions and finality: - 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. - Remedies for successful challenges to individual decisions: - If the Tribunal concludes 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 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, order payment of a higher compensation, provided a statement of specific reasons is made. - Remedies for successful challenges to regulatory decisions: - If the Tribunal concludes an application challenging the legality of a regulatory decision is well-founded, it shall annul such decision. - Any individual decision adversely affecting a staff member taken before or after the annulment and on the basis of such regulatory decision shall be null and void. - Costs and allocation: - If the Tribunal concludes an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant’s counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates. - The Tribunal 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 the resolution of the case or to harass the Fund or any of its officers or employees. - 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. ### Revision, correction, publication, and amendment (Articles XVI–XIX) - Revision: - A party may request revision of a judgment within six months after that party acquired knowledge of a newly discovered fact which might have had a decisive influence on the judgment and which was unknown to both the Tribunal and that party at the time the judgment was delivered. - Correction and interpretation: - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. - Records and copies: - The original of each judgment shall be filed in the archives of the Fund. A copy attested by the President shall be delivered to each of the parties concerned. - A copy shall also be made available by the Secretariat on request to any interested person, provided that the President may decide that identities or other means of identification of the applicant or other persons mentioned in the judgment shall be deleted from such copies. - Amendment of Statute: - This Statute may be amended only by the Board of Governors of the Fund. ### Temporal limitations and extension to other organizations (Articles XX–XXI) - Temporal limits: - 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. - For decisions taken between October 15, 1992 and the establishment of the Tribunal, an application shall be admissible only if filed within three months after the establishment of the Tribunal. For purposes of 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. - Extension to other international organizations: - The competence of the Tribunal may be extended to any international organization upon the terms established by a special agreement to be made with each such organization by the Fund. - Each special agreement shall provide that the organization concerned shall be bound by the judgments of the Tribunal and be responsible for payment of any compensation awarded by the Tribunal in respect of a staff member of that organization, and 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. *Statute — Administrative Tribunal of the International Monetary Fund.* ### 1. The Tribunal shall be competent to pass judgment upon any ### 1. The Tribunal shall be competent to pass judgment upon any application ### Scope of competence (Article II — applications) - The Statute empowers the Tribunal to hear: - applications by a member of the staff challenging the legality of an administrative act adversely affecting him; and - applications by an enrollee in, or beneficiary under, any retirement or other benefit plan maintained by the Fund as employer challenging the legality of an administrative act concerning or arising under any such plan which adversely affects the applicant. - The power of the Tribunal derives from the Statute that establishes it; the Statute defines the scope of competence and the limitations that bound the Tribunal’s authority. - The Tribunal may not resolve hypothetical questions or issue advisory opinions; an applicant must be adversely affected by a decision to challenge it. ### Competence with respect to benefit plans - The Statute explicitly covers decisions relating to the Fund’s retirement and other benefit plans, including: - Staff Retirement Plan (SRP), - Medical Benefits Plan (MBP), and - Group Life Insurance Plan. - Individuals who are not staff but have rights under those plans (for example, beneficiaries under the SRP or nonstaff enrollees in the MBP) may challenge decisions arising under or concerning the Fund’s retirement or benefit plans, but may not challenge other types of administrative acts before the Tribunal. ### Definitions critical to competence (Section 2) - 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 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; - 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. - The Tribunal’s competence ratione materiae covers individual and regulatory decisions affecting terms and conditions of employment, including staff regulations set forth in the N Rules. - The Statute excludes resolutions adopted by the Board of Governors from the Tribunal’s competence; the Board of Governors, as the organ establishing the Tribunal, may limit the Tribunal’s jurisdiction by resolution. ### Procedural timing rule - Periods of time in the Statute (for example, time limits for filing an application in Article VI) run from the day after the challenged decision is rendered; if the last day falls on a nonworking day, the period includes the next working day of the Fund. ### Limits on review and applicable law (Article III) - The Tribunal shall not have any powers beyond those conferred under this Statute. - In deciding an application, the Tribunal shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts. - The Tribunal must respect well-established principles for review of actions by decision-making organs, including noninterference with the proper exercise of authority by those organs. - Internal law of the Fund includes: - formal written sources (Articles of Agreement, By-Laws and Rules and Regulations, General Administrative Orders), and - unwritten sources (administrative practice and general principles such as the right to be heard, audi alteram partem). - The Fund retains broad powers to alter terms and conditions of employment prospectively; the Tribunal may find a violation only where the Fund has obligated itself (by formal commitment or consistent practice) not to amend an element of employment, subject to reasonable justification for adjustments (e.g., urgent and unavoidable financial imbalances). - Review of regulatory decisions is narrow; the Tribunal must respect the authority of decision-making organs and will not substitute its judgment for managerial assessments. - Discretionary individual 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 Statute emphasizes that the Tribunal’s application of general principles must not derogate from the powers conferred on the Fund’s organs under the Articles of Agreement. ### Binding interpretations and separation of powers (Article III, continued) - Nothing in the 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 taking individual or regulatory decisions. - 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. - Executive Board interpretations of the Articles are binding on the Fund and its members; where the Executive Board has adopted a particular interpretation, that interpretation is binding on the Tribunal in the context of a challenge to a decision, although the Tribunal retains authority to make findings of legality consistent with that 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 the Statute. - The Tribunal has authority to determine its own competence within the terms of the Statute; it may interpret but not expand its competence with respect to a particular case. *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 for the settlement of disputes ### Exhaustion of administrative review (Article V) - An application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review. - Where available channels include a Fund procedure for complaints and grievances involving consistency with personnel regulations, administrative review is deemed exhausted when any of the following occurs: - 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; - 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, administrative review is deemed exhausted when any of the following occurs: - 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; - 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 agree to submit the dispute directly to the Tribunal. ### Time limits for filing applications (Article VI) - Individual-decision challenges: - 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. - The three-month period does not include time required for administrative review; it begins only after administrative review is fully exhausted and the Managing Director has decided whether to implement the 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. - Comparable periods in other international administrative tribunals are generally 60 days or 90 days; except in cases of death, the statute of limitations in other tribunals does not exceed 90 days. - Regulatory-decision challenges: - 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. - 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 illustrative timing 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 the applicant received a response denying his request on the last day of that period (April 2), administrative review would be exhausted and 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 was received on April 2 granting the request, but the relief was not forthcoming by June 2, the applicant would have three months, i.e., from June 3 to September 2, inclusive, to file. - If a response denying the request was received before April 2 (for instance, March 19), the three-month period for filing would run from the date of receipt (e.g., until June 20, inclusive). ### Tribunal discretion, interim measures, and effect of filing - The Tribunal may, in exceptional circumstances, waive the time limits prescribed under Article VI, Sections 1 or 2 if it considers the delay justified; examples of justified delay include extensive mission travel, prolonged illness, or other exigent personal circumstances. A waiver may be requested before or after the deadline. - Filing an application does not suspend the implementation of the contested decision; the mere filing shall not stay the effectiveness of the decision. - The Tribunal may order interim measures where warranted by the circumstances of a particular case, although the statute follows the principle that interim relief is exceptional given the employment context and availability of compensatory relief. ### Settlement and termination of applications - No application may be filed or maintained after the applicant and the Fund have reached an agreement on the settlement of the dispute giving rise to the application. ### Composition, appointment, and independence of the Tribunal (Articles VII–VIII) - Appointment and qualifications: - The President shall be appointed for two years by the Managing Director after consultation with the Staff Association and with the approval of the Executive Board; the President shall have no prior or present employment relationship with the Fund. - Two associate members and two alternates who have no prior or present employment relationship with the Fund shall be appointed for two years by the Managing Director after appropriate consultation. - The President 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. - Terms, reappointment, replacement, and recusal: - Members 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. - 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, 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 in the exercise of their duties; they shall not receive any instructions or be subject to any constraint. - In the performance of their functions, members shall be considered as officers of the Fund for purposes of the Articles of Agreement and shall 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- ### imfat-3 - 1. The Managing Director shall make the administrative arrange- ### Administrative support and secretariat - 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. - Secretariat personnel, in the discharge of duties hereunder, shall be under the authority of the President. - Such personnel shall not, at any time, disclose confidential information received in the performance of their duties. - The Fund shall bear the expenses of the Tribunal, including fees paid to and expenses incurred by the President and the associate members in connection with the performance of their duties. - Administrative support is expected to be provided by a small secretariat; personnel assigned for such purpose will take instructions only from, and act under the direction of, the President and will be independent from the Fund in the performance of their duties. ### Document production, evidence, and witnesses (Article X) - The Tribunal may require the production of documents held by the Fund. - The Managing Director may withhold evidence if he determines that introduction of such evidence might hinder the operation of the Fund because of the secret or confidential nature of the document. - Such a determination by the Managing Director shall be binding on the Tribunal. - If the Managing Director withholds a document and the applicant alleges the document’s contents, the applicant’s allegations shall be deemed to have been demonstrated in the absence of probative evidence to the contrary (i.e., the applicant’s assertion will be prima facie evidence as to that content). - The Tribunal may examine witnesses and experts, subject to the same qualification. - Administrative tribunals typically rely largely on written evidence and pleadings. ### Rules of Procedure (Article X, Section 2) - 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; - other matters relating to the functioning of the Tribunal. - Rules are adopted by a majority of the entire membership (President, associate members, and their alternates). - The Tribunal could adopt rules on filing procedures, obtaining information, oral proceedings, participation of amicus curiae, availability of judgments, and summary dismissal procedures. ### Representation, costs, and allocation of expenses (Article X, Section 3; Article XIV, Section 4; Article XV) - Each party may be assisted in the proceedings by counsel of his choice, other than members of the Fund’s Legal Department, and shall bear the cost thereof, subject to Article XIV, Section 4 and Article XV. - As a general rule, each side bears its own costs, including attorney’s fees. - Article XIV, Section 4 authorizes the Tribunal, if it concludes that an application is well-founded in whole or in part, to 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. - Factors for determining reasonableness of costs include: 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 award reasonable costs only to the parties (an applicant or the Fund) and not to other persons. - Under Article XV, the Tribunal could award reasonable costs against an applicant whose claims were manifestly without foundation. ### Remedies for unlawful individual decisions and regulatory decisions (Article XIV, Sections 1–3) - 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 nonmonetary measures, 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. - 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. - Annulment would render the regulatory decision unenforceable against applicants in individual cases and would require corrective measures for adversely affected staff members. - If a regulatory decision had been in effect by the organization for over three months, an application directly challenging its legality would not be admissible. - When corrective nonmonetary relief is infeasible or inadvisable, the Managing Director may choose monetary compensation within the statutory limits as an alternative to implementing the measures ordered by the Tribunal. ### Sessions, oral proceedings, and decision-making (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 relatively rare; international administrative tribunals generally decide cases on written submissions. - 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, though dissents would not need to be registered. *Report of the Executive Board* ### 5. When a procedure prescribed in the rules of the Fund for the ### 5. When a procedure prescribed in the rules of the Fund for the taking of a decision has not been observed ### Article XV — Costs and compensation - 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. - 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: - Authorizes assessment of reasonable costs incurred by the Fund in defending against applications determined to be patently without foundation. - Award of costs would not include expenses of operating the tribunal. - Enforcement through deductions from amounts payable by the Fund to the applicant (such as salary or separation payments) or other means as management deems appropriate. - Intended as a deterrent to abusive or manifestly groundless applications; not intended to deter good faith arguments for extension, modification, or reversal of existing law. - Procedural note: - Unless summarily dismissed, the tribunal must hear the case and dispose of the matter on the merits; summary dismissal procedures could be adopted by the tribunal. ### Article XVI — Revision of judgment - A party to a case in which a judgment has been delivered may request the Tribunal to revise the judgment in the event of discovery of a fact which: - by its nature might have had a decisive influence on the judgment of the Tribunal; and - at the time the judgment was delivered was unknown both to the Tribunal and to that party. - Time limit: - Request must be made within a period of six months after that party acquired knowledge of such fact. - Purpose: - Prevents presentation of material facts known to a party before decision but not presented until after judgment. - Permits reopening and revision when a material fact is discovered after the decision. ### Article XVII — Interpretation and correction of judgments - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. - Authority: - Corrections or interpretations may be made on the Tribunal’s own initiative or upon application by a party. - Tribunal may interpret its own judgment upon request if terms are unclear or incomplete as demonstrated by the requesting party. - Rationale: - Ensures judgments are given effect in accordance with the Tribunal’s findings and conclusions. - Comparable authority exists in other tribunals (e.g., Article 40 of the Statute of the CJEC). ### Article XVIII — Filing and availability of judgments - Original of each judgment shall be filed in the archives of the Fund. - A copy of the judgment, attested by the President, shall be delivered to each of the parties concerned. - A copy shall be made available by the Secretariat on request to any interested person, subject to the President’s authority to delete identities or other means of identification of the applicant or other persons mentioned in the judgment. - Intent: - Judgments are in the public domain and may be cited or published. - President may conceal identity in copies to protect privacy or confidentiality (e.g., complainant in a sexual harassment case). ### Article XIX — Amendment of the Statute - The Statute may be amended only by the Board of Governors of the Fund. - Effect: - Board of Governors may amend or abrogate the statute after establishment, thereby affecting the tribunal’s judicial function with respect to future cases. ### Article XX — Temporal jurisdiction - 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. For 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 these purposes, 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: - Tribunal competent to hear cases involving decisions taken on or after the effective starting date of the tribunal’s jurisdiction (the date the Executive Board formally approved transmittal of the proposed statute to the Board of Governors). - Administrative acts taken before October 15, 1992 are not reviewable even if administrative review was pending on the effective starting date. - Section 2 provides a transitional extension of the period specified in Article VI for initiating proceedings. ### Article XXI — Affiliation of other international organizations - The competence of the Tribunal may be extended to any international organization upon terms established by a special agreement with the Fund. - Each special agreement shall provide that: - the affiliating organization shall be bound by the judgments of the Tribunal and be responsible for payment of any compensation awarded in respect of a staff member of that organization; - provisions concerning participation in administrative arrangements for the Tribunal and sharing of expenses shall be included. - Limitations: - Affiliating organization would not have authority over appointment of Tribunal members or amendment of the governing statute. ### Part III — Procedure for adoption and voting timetable - Procedure for adoption of the proposed statute: - Proposed resolution and statute to be communicated to the Board of Governors. - Executive Board recommends, as proposed in Article XX of the statute if approved by the Board of Governors, that the statute enter into force as of October 15, 1992. - Executive Board requests Governors to vote without meeting pursuant to Section 13 of the By-Laws: - To be valid, votes must be received at the seat of the Fund before 6:00 p.m., Washington time, on December 21, 1992. - 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. ### Part IV — Resolution - The Board of Governors RESOLVES that the proposed Statute of the Administrative Tribunal of the International Monetary Fund is adopted. - Resolution No. 48-1: Establishment of the Administrative Tribunal of the International Monetary Fund. ### Rules of Procedure — Selected rules and dates - General (RULE I): - Rules apply to the Administrative Tribunal of the International Monetary Fund. - Rules subject to: - (a) the Fund’s Articles of Agreement; - (b) the Statute of the Tribunal. - Masculine pronoun includes feminine pronoun. - Official Language (RULE II): - The working language of the Tribunal shall be English. - President (RULE III): - The President shall: - (a) preside over consideration of cases by the Tribunal; - (b) direct the Registry in performance of its functions; - (c) prepare an annual report on activities of the Tribunal; and - (d) perform functions entrusted by these Rules of Procedure. - Registry (RULE IV): - Under authority of the President, the Registrar shall: - (a) receive applications instituting proceedings and related documentation; - (b) transmit all documents and make all notifications required; - (c) make a dossier for each case recording actions and dates; - (d) attend hearings, meetings, and deliberations; - (e) keep minutes as instructed by the President; and - (f) expeditiously perform functions and tasks assigned by the President. - Recusal (RULE V): - Pursuant to Article VII, Section 3 of the Statute, a member shall recuse himself: - (a) in cases involving persons with whom the member has a personal, familial or professional relationship; - (b) in cases in 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 exist making participation seem inappropriate. - Any member recusing himself shall immediately inform the President. - Counsel (RULE VI): - In accordance with Article X, Section 3 of the Statute, each party may at any time choose to be assisted by counsel, whose designation shall be notified to the Registrar. - Applications (RULE VII): - Applications shall be filed by the Applicant or his duly authorized representative, following the form attached as Annex A; representation form is Annex B. - Each application 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 the Applicant 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 the specific performance of any obligation requested. - Annexes and copies: - Applicant shall attach all documents cited in original or unaltered copy and complete text unless obviously irrelevant; such documents shall include any report and recommendation of the Grievance Committee. - If a document is not in English, an English translation shall be attached. - Four additional copies of the application and attachments shall be submitted to the Registrar. - Entry into force and amendment of these Rules: - These Rules entered into force on February 18, 1994 and were amended on August 31, 1994. *Report of the Executive Board, Administrative Tribunal of the International Monetary Fund* ### 5. An application shall satisfy the provisions of Article XX, and be ### Rules of Procedure: Application, Pleadings, Proceedings, and Annex Forms ### Application: filing, formal requirements, and corrections - An application must 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, to make appropriate corrections or additions; if corrected within that period, the application is considered filed on the original date; - (i) notify the Applicant that the period for making changes has been extended, indicating the length of time thereof; - (ii) make necessary corrections when defects 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 formal requirements are met, the Registrar shall notify the Fund of the application and transmit a copy to the General Counsel. - The application shall be signed on the last page by the Applicant or the designated representative; in the event of the Applicant’s incapacity, the required signature shall be furnished by his legal representative. ### Answer (Rule VIII) - Once 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 and shall include as annexes all documents referred to in the answer in accordance with 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 formal requirements are met, the Registrar shall transmit a copy of the Fund’s answer to the Applicant. ### Reply and Rejoinder (Rules IX and X) - Reply: - The Applicant may file 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 Rule VII. - The requirements of Rule VII, Paragraphs 4 and 8, apply to the reply. - Upon ascertaining formal requirements are met, the Registrar shall transmit a copy of the Applicant’s reply to the Fund. - Rejoinder: - The Fund may file a written rejoinder within thirty days of receiving the Applicant’s reply, unless, upon request, the President sets another time limit. - Complete texts of documents referred to in the rejoinder shall be annexed in accordance with Rule VII. - The requirements of Rule VIII, Paragraphs 2 and 3, apply to the rejoinder. - Upon ascertaining formal requirements are 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. ### Additional pleadings and summary dismissal (Rules XI and XII) - 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 documents within a period he shall fix; documents shall be original or unaltered copies and accompanied by necessary translations. - Requirements of Rule VII, Paragraphs 4 and 8, or Rule VIII, Paragraphs 2 and 3, apply as appropriate. - Written statements and additional documents shall be transmitted by the Registrar, on receipt, to the other party or parties. - Summary Dismissal: - Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initiative or upon 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; filing the motion suspends the period for answering until the motion is acted on by the Tribunal. - The complete text of any document referred to in the motion shall be annexed in accordance with Rule VII; the requirements of Rule VIII, paragraphs 2 and 3, apply to the motion. - Upon ascertaining the motion meets formal requirements, the Registrar shall transmit a copy thereof to the Applicant. - The Applicant may file 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 in accordance with Rule VII; the requirements of Rule VII, Paragraphs 4 and 8, apply. - Upon ascertaining the objection meets formal requirements, the Registrar shall transmit a copy to the Fund. - There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests. ### Oral proceedings, witnesses, experts, and evidence (Rule XIII) - Oral proceedings shall be held if the Tribunal decides they are necessary; the Tribunal shall hear oral arguments and may examine parties and counsel. - Before oral proceedings, each party shall inform the Registrar (and through him the other parties) of names and descriptions of witnesses and experts, indicating the points to which evidence will refer; the Tribunal may also call witnesses and experts. - The Tribunal decides on applications to hear witnesses or experts and determines the sequence of oral proceedings in consultation with parties or counsel. - Where a witness cannot appear, the Tribunal may decide the witness shall reply in writing to questions of the parties; parties retain the right to comment on written replies. - Parties or counsel may, under the direction of the President, put questions to witnesses and experts; the Tribunal may also examine them. - Declarations before giving evidence: - Witnesses shall declare: “I solemnly declare upon my honor and conscience that my testimony shall be the truth, the whole truth and nothing but the truth.” - Experts shall 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 it considers irrelevant, frivolous, or lacking in probative value, and may limit oral testimony where written documentation is adequate. - The President is empowered to issue orders and decide matters necessary for orderly disposition of cases, including rulings on objections concerning witnesses or documentary evidence. ### Intervention and amicus curiae (Rules XIV and XV) - Intervention: - Any person to whom the Tribunal is open under Article II, Section 1 of the Statute may, before closure of the written pleadings, apply to intervene on the ground that he has a right which may be affected by the judgment. - The rules regarding preparation and submission of applications apply mutatis mutandis to intervention applications. - Upon ascertaining formal requirements are complied with, the Registrar shall transmit a copy of the application for intervention to the Applicant and the Fund, each entitled to present views on intervention within thirty days. Upon expiration of that deadline, the President, in consultation with other Tribunal members, shall decide whether to grant intervention; if admitted, the intervenor participates as a party. - To inform the Fund community of proceedings pending before the Tribunal, the Registrar, upon notification of an application to the Fund, shall, unless the President decides otherwise, issue a summary of the application without disclosing the name of the Applicant for circulation within the Fund. - Amicus Curiae: - The Tribunal may, at its discretion, permit any persons, including duly authorized representatives of the Staff Association, to communicate their views to the Tribunal. ### Time limits and calculation (Rule XVI) - Time limits prescribed in the Rules of Procedure refer to calendar days, exclude the day of the event from which the period runs, and include the next working day of the Fund when the last day of the period is not a working day. ### Production of documents (Rule XVII) - The Applicant may, before closure of the pleadings, request the Tribunal to order production of documents or other evidence to which he has been denied access by the Fund, accompanied by relevant documentation bearing on the request and denial; the Fund shall be given an opportunity to present views. - The Tribunal may reject requests for documents found clearly irrelevant, unduly burdensome, or infringing on privacy; for privacy assessment, the Tribunal may examine documents in camera. - The 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 it deems useful to its judgment. - When the Tribunal is not in session, the President shall exercise the powers set forth in this Rule. ### Judgments, revision, and interpretation (Rules XVIII–XX) - Judgments: - All deliberations of the Tribunal shall be in private; the judgment shall be adopted by majority vote. - Once the final text is approved and adopted, the judgment shall be signed by the President and the Registrar and shall contain the names of the members who took part in the decision. - Any member differing as to grounds or conclusions may append a separate or dissenting opinion. - The judgment and any appended opinions shall be transmitted to the parties and to amici curiae and shall be available to interested persons upon request to the Registrar, who shall arrange for their publication. - Clerical and arithmetical errors in the judgment may be corrected by the Tribunal. - Revision of Judgments: - A party may request revision only if a fact or document is discovered which might have had decisive influence on the judgment and which was unknown to the Tribunal and to the party requesting revision, and such ignorance was not the responsibility of that party. - 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 revision was notified of the judgment unless, upon request, the President sets another time limit. - The procedure in Rules VIII through XI shall be applied, mutatis mutandis, to revision requests. - The Tribunal shall decide whether to admit the application for revision; if admitted, it shall pass judgment on the matter in accordance with the Rules. - Interpretation of Judgments: - In accordance with Article XVII of the Statute, after a judgment has been rendered, a party may apply requesting interpretation of the operative provisions of the judgment. - The application is admissible only if it states with sufficient particularity in what respect the operative provisions appear obscure or incomplete. - The Tribunal, after giving other parties a reasonable opportunity to present views, shall decide whether to admit the application for interpretation; if admitted, the Tribunal shall issue its interpretation, which shall become part of the original judgment. ### Miscellaneous provisions (Rule XXI) - The President, in consultation with the other members, shall fix dates of the Tribunal’s sessions. - The Tribunal, or when not in session the President after consultation where appropriate, may in exceptional cases modify the application of the Rules, including time limits. - The Tribunal or, when not in session, the President may deal with any matter not expressly provided for in the Rules. ### Annex A — Form of Application (selected content) - The form collects: - Information concerning personal status of the Applicant (full name; if claim based on employment rights of another person: name and official status of that person and relation to Applicant; address for proceedings; telephone number; fax number). - Official status details: 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. - Decision being challenged, date of the decision, and authority responsible for the decision. - Channels of administrative review pursued and results. - Reasons why Applicant challenges the decision and its legality. - Statement of supporting facts. - Relief or remedy sought, including amount of compensation, if any, and/or specific performance requested. - Annexes to be attached pursuant to Rule VII, para. 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.” - Any additional information the Applicant wishes to present to the Tribunal. ### Annex B — Form of Appointment of Representative (and Counsel) - Appointment form authorizes a named representative [and counsel]* to file/maintain an application with the IMF Administrative Tribunal, sign pleadings, appear before the Tribunal, and take necessary action in connection with the case; designation takes effect immediately and remains in effect until revoked and the Tribunal is so informed in writing. - Form includes Date and Signature lines. - Instruction: Delete the brackets if the representative will also assist as counsel; if not, delete “and counsel” in the caption and below. --- _Source: https://www.imf.org/-/media/files/imfat/imfat-3.pdf_