## Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2006 ## Source details **Canonical URL:** [Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2006](https://www.imf.org/-/media/files/imfat/imfat-5.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/imfat-5.pdf.md) - [Structured JSON version](/-/media/files/imfat/imfat-5.pdf.json) --- ### Tribunal background, composition, and caseload - The International Monetary Fund Administrative Tribunal (“IMFAT” or “Tribunal”) was established in 1994 to resolve employment disputes between the International Monetary Fund (“IMF” or “Fund”) and staff members (Statute, Article II (1) and (2)). - Filing and exhaustion rules: an Application challenging an “individual” decision may be filed only after the Applicant has exhausted all available channels of administrative review (Statute, Article V (1)); the Judgments of the Tribunal are final and without appeal (Statute, Article XIII (2)). - Tribunal composition in 2006: - Judge Stephen M. Schwebel, President - Judges Nisuke Ando and Michel Gentot, Associate Judges - Judges Georges Abi‑Saab and Agustín Gordillo, Alternate Judges - In 2006 the Tribunal rendered six Judgments. ### Law applied and standards of review - The Tribunal applies the Fund’s internal law and “generally recognized principles of international administrative law concerning judicial review of administrative acts” (Statute, Article III). - Sources of internal law include written sources and “unwritten sources,” including general principles such as the right to be heard (Report of the Executive Board, pp. 17–18). - Standard of review: - Regulatory decisions receive heightened deference, but alleged violations of “universally recognized human rights” require a greater degree of scrutiny (Ms. “M” and Dr. “M”, para. 116–117). - Discretionary managerial decisions may be overturned if shown to be “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures” (Report of the Executive Board, p. 19). ### Key Judgments — overview of substantive holdings - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), November 29, 2006 — SRP Section 11.3 and children born out of wedlock: - Held that “universally accepted principles of human rights” are part of the Fund’s internal law and constrain Fund discretion where discrimination on the ground of birth is alleged. - Concluded the earlier SRP “marital relationship” requirement was “fundamentally defective” for failing to make adequate provision for children born out of wedlock and incompatible with international nondiscrimination standards (Ms. “M” and Dr. “M”, para. 130). - Interpreted SRP Section 11.3 to permit giving effect to court orders that do not expressly direct payment from pension benefits in appropriate circumstances and identified factors the Administration Committee and the Tribunal may weigh when foreign orders lack express pension direction (e.g., foreign residence of child; difficulty obtaining a QDRO‑style order; retiree’s evasion). - Ordered deductions of 16/3 percent from prospective monthly pension payments to satisfy specified arrears and interest (Decision: sum and payment mechanics preserved in Judgment No. 2006-6 Decision). - Preserved Applicants’ reserved claims for damages but did not decide them on the merits. - Judgment No. 2006-1 (Mr. “O”), February 15, 2006 — reemployment guarantee and time limits: - Identified the May 4, 1995 letter and subsequent extension acts (including October 30, 2002 “final extension”) as potentially distinct administrative acts subject to challenge. - Held management could offer a limited‑duration reentry appointment carrying staff benefits provided the staff member agreed or acquiesced; concluded Applicant had acquiesced by acceptance of benefits and failure to object contemporaneously. - Applied the Tribunal’s authority to consider “exceptional circumstances” and concluded Applicant’s complaint was not time‑barred given management’s engagement with his letters and investigation (paras. 65–71). - Judgment No. 2006-2 (Ms. “T”), June 7, 2006 — non‑conversion of fixed‑term appointment: - Reaffirmed Guidelines for Fixed‑Term Appointments (1995) criteria for conversion: (a) performance during the fixed term, (b) potential for a career with the Fund, and (c) staffing needs. - Emphasized conversion is performance‑based; burden of proof rests with the applicant. Tribunal upheld non‑conversion where adequate supervision, feedback, extension, and opportunity to remedy deficiencies had been provided. - Judgment No. 2006-3 (Ms. “U”), June 7, 2006 — non‑conversion standards applied: - Reiterated requirement of a “clearly positive assessment” for conversion and denied allegations of discrimination where evidence was unsubstantiated. - Sustained managerial discretion absent arbitrariness or procedural unfairness. - Judgment No. 2006-4 (Baker et al.), June 7, 2006 — mootness of compensation challenge: - Found the Executive Board’s April 14, 2006 decision “. . . supersedes all previous decisions concerning the staff compensation system,” thereby rendering the January 24, 2005 decision no longer to have any “present effect” and granted dismissal as moot. - Awarded Applicants $4,200 for fees incurred in preparing their earlier successful Objection to a prior Motion for Summary Dismissal. - Judgment No. 2006-5 (Ms. “AA”), November 27, 2006 — admissibility and timeliness: - Dismissed Application as “clearly inadmissible” for failure to initiate administrative review within prescribed time limits and rejected invocation of a “discovery rule” or “equitable tolling” where Applicant had knowledge of elements of claim within the prescribed period. ### SRP Section 11.3 — interpretation, prospective payments, and nondiscrimination - Evolution and text: - SRP Section 11.3 was amended in December 2001 to authorize payments “. . . pursuant to a legal obligation arising from a marital relationship or pursuant to a legal obligation to make child support payments” (emphasis supplied), thereby abolishing the prior “marital relationship” limitation (paras. 118–122). - Preserved Plan provision language on benefits payable: “The benefit payable shall not exceed: . . . when payable to a child or children or their parents or guardians, 16/3 percent of the benefit payable to the participant or retired participant whenever the court ordered obligation is for support of his child or children. . . .” (Ms. “M” and Dr. “M”, note 43). - Doctrinal holdings: - The Tribunal held SRP Section 11.3 admits a broader interpretation than one requiring court orders to expressly reference SRP benefits; absence of explicit pension direction does not debar giving effect where contextual factors justify doing so (paras. 130–144). - Rule 9 (“Payments pursuant to a direction or an accepted request shall be prospective only”) means that the Plan will implement deductions from prospective pension payments; prospective implementation does not preclude giving effect to past‑arising liabilities by staggering repayment from future pension disbursements once the Committee accepts an order consistent with Section 11.3 (paras. 162–172). - Human‑rights constraint: - The Tribunal applied “universally accepted principles of human rights” (citing Article 25, Universal Declaration of Human Rights) to invalidate the prior “marital relationship” exclusion as producing disparate and discriminatory effects on children born out of wedlock (paras. 130–133). - Concluded that such principles are part of the Fund’s internal law and limit Fund discretion even where the Fund’s written nondiscrimination rules are framed in employment terms (paras. 123–127). ### Multijurisdictional, procedural, and practical factors for SRP orders - When foreign orders lack express pension direction, the Tribunal and Administration Committee may weigh: - the foreign residence of the child and guardian; - Applicants’ asserted difficulty in obtaining a QDRO‑style order in the foreign forum; - applicants’ inability to execute effectively against other assets of the retiree; - retiree’s bad faith or evasion of paternal responsibilities (paras. 155; 160). - The Tribunal recognized national courts may avoid specifying SRP payment because of Fund immunity; therefore requiring express pension direction could unfairly deny relief where alternative enforcement is impracticable (paras. 157; 158). ### Timeliness, exhaustion of administrative review, and “exceptional circumstances” - Statutory framework: - Article V, Section 1 requires exhaustion of all available channels of administrative review before filing with IMFAT. - Article VI imposes a three‑month statute of limitations after exhaustion; Tribunal may waive time limits in “exceptional circumstances” (Commentary on the Statute). - Tribunal practice in 2006: - Reaffirmed authority to examine “exceptional circumstances” independently and sparingly (Estate of Mr. “D” precedent; Mr. “O”, paras. 48–71). - Distinguished cases where management’s substantive engagement (e.g., Deputy Managing Director’s investigatory responses in Mr. “O”) could stand in lieu of formal administrative review versus cases where Applicants had actual knowledge and unreasonably delayed (Ms. “AA”). - For non‑staff SRP claimants (Ms. “M” and Dr. “M”) the Tribunal found the Fund had an obligation to provide notice of recourse procedures; absence of notice to non‑staff and uncertainty as to availability of recourse supported a finding of “exceptional circumstances” and waiver of time limits (paras. 106–111). ### Managerial discretion, fixed‑term conversion, and reemployment decisions - Conversion of fixed‑term appointments: - Three conversion criteria from the Guidelines for Fixed‑Term Appointments (1995): (a) performance, (b) potential for a career with the Fund, (c) staffing needs (Ms. “T” and Ms. “U”, paras. 32–35). - Applicant bears burden of proof; managerial decisions are upheld unless arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or procedurally defective (Ms. “T”, Ms. “U”). - Procedural fairness requires periodic evaluation, adequate warning, and reasonable opportunity to remedy deficiencies. - Reemployment after Executive Board advisor service: - GAO No. 16, Section 6 governs mandatory resignation and reemployment; Fund may determine and record the period during which an understanding regarding reappointment applies (Mr. “O”, GAO No. 16, Section 6.04.2). - The Tribunal held the Fund may structure limited‑duration reentry arrangements carrying some staff benefits provided the staff member agreed or acquiesced; evidence of assent may include acceptance of benefits and failure to object contemporaneously (Mr. “O”, paras. 82–97). ### Admissibility, discovery, and production of documents - Admissibility rulings in 2006: - Four of six Judgments addressed admissibility/timeliness (e.g., Ms. “AA” (No. 2006-5), Mr. “O” (No. 2006-1), Ms. “M” and Dr. “M” (No. 2006-6), Baker et al. (No. 2006-4)). - The Tribunal may summarily dismiss clearly inadmissible Applications under Rule XII. - Rule XVII (Production of Documents): - Applicant may request production before pleadings close; Tribunal may reject requests that are irrelevant, unduly burdensome, or infringe privacy; Tribunal may examine documents in camera. - In 2006 the Tribunal denied multiple document requests where Fund represented all responsive documents had already been provided in Grievance proceedings (Ms. “T” document requests decision). ### Remedies, costs, and implementation - Remedies and compensation under the Statute: - If the Tribunal finds an individual decision illegal it shall prescribe rescission and corrective measures; if non‑monetary measures are ordered the Tribunal fixes compensation if the Managing Director elects not to implement (Article XIV). - The Tribunal may award reasonable costs to Applicants if an Application is well‑founded in whole or in part (Article XIV, Section 4). - 2006 costs awards: - Baker et al. (No. 2006-4): awarded $4,200 to Applicants for fees in preparing successful Objection to an earlier Motion for Summary Dismissal. - Judgment No. 2006-6 invited Applicants to submit statements of legal costs incurred before the Tribunal for payment by the Fund pursuant to Article XIV, Section 4, where the Application was well‑founded. ### Cross‑case doctrinal developments (2006) — summary of legal significance - Universally accepted human‑rights principles form part of the Fund’s internal law and can limit Fund discretion even where written rules do not explicitly proscribe a form of discrimination (Ms. “M” and Dr. “M”, paras. 125–133). - The rule of nondiscrimination constrains both policy‑making and administrative functions of the Fund (preexisting IMFAT precedent reiterated). - SRP Section 11.3 and Committee Rules should be interpreted to balance the anti‑alienation purpose of pension security with the Fund’s policy of encouraging enforcement of family support; Tribunal endorsed inclusive interpretation in appropriate cases and clarified operation of the “prospective payments” rule. - Exhaustion, notice, and timeliness remain critical jurisdictional gates; the Tribunal will apply “exceptional circumstances” narrowly but will recognize Fund obligations to inform non‑staff SRP claimants of recourse avenues where failure to do so would yield unfair preclusion. *Source: International Monetary Fund — Developments in the Jurisprudence of the IMF Administrative Tribunal: 2006 (IMF Administrative Tribunal Reports, Vol. V; Judgments No. 2006-1 through No. 2006-6).* ### APPENDIX 2 ### Developments in the Jurisprudence of the International Monetary Fund Administrative Tribunal: 2006 ### Background - The International Monetary Fund Administrative Tribunal (“IMFAT” or “Tribunal”) was established in 1994. - IMFAT serves as an independent judicial forum for resolution of employment disputes between the International Monetary Fund (“IMF” or “Fund”) and its staff members. - An Applicant may challenge the legality of an “individual” or “regulatory” decision of the Fund by which he has been “adversely affect[ed].” (Statute, Article II (1) and (2).) - For challenges to “individual” decisions, an Application may be filed only after the Applicant has exhausted all available channels of administrative review. (Statute, Article V (1).) - The Judgments of the Tribunal are final and without appeal. (Statute, Article XIII (2).) - Tribunal composition and appointments: - The Tribunal is composed of a President, two Associate Judges and two Alternate Judges, each appointed for two-year terms and eligible for reappointment. (Statute, Article VII (1)(a) and (b), and (2).) - During 2006 the Tribunal’s composition remained unchanged with: - Judge Stephen M. Schwebel, President - Judges Nisuke Ando and Michel Gentot, Associate Judges - Judges Georges Abi-Saab and Agustín Gordillo, Alternate Judges - In 2006 the Tribunal rendered six Judgments. ### The Law Applied by the Administrative Tribunal - The Tribunal’s Statute, Article III, directs the Tribunal to apply the internal law of the Fund, including “generally recognized principles of international administrative law concerning judicial review of administrative acts.” - The Fund’s internal law encompasses both written sources and “unwritten sources,” including general principles of international administrative law such as the right to be heard. (Report of the Executive Board, pp. 17–18.) - IMFAT precedent: - In Mr. “R” (IMFAT Judgment No. 2002-1), the Tribunal recognized that the “rule of nondiscrimination imposes a substantive limit on the exercise of discretionary authority in both the policy-making and administrative functions of an international organization.” - In Mr. “F” (IMFAT Judgment No. 2005-1), the Tribunal distinguished equality-of-treatment principles from principles of nondiscrimination implicating “universally accepted principles of human rights,” and noted that discrimination prohibited by Fund written law is also prohibited by universally accepted principles of human rights. ### Case focus: Ms. “M” and Dr. “M” v. International Monetary Fund (IMFAT Judgment No. 2006-6, November 29, 2006) - Facts and issues: - The case arose under the Staff Retirement Plan (“SRP” or “Plan”) provision authorizing the Fund, pursuant to prescribed procedures, to give effect to orders for family support and division of marital property issued by domestic courts. - Ms. “M” and her mother Dr. “M” sought to have a series of child support orders issued by German courts given effect by deducting support payments for Ms. “M” from the pension payments of Mr. “N”, a retired SRP participant. - Novel issues presented: - The SRP provision in effect at the time effectively precluded requests by or on behalf of children born out of wedlock; Ms. “M” and Dr. “M” alleged discriminatory denial based on the fact that Dr. “M” and Mr. “N” had never been married to one another. - The court orders did not specify that support payments be drawn from Mr. “N”’s IMF pension benefits; the Fund maintained that this omission barred giving effect under the SRP. - Resolution required consideration of the relationship between: - the internal law of the Fund, - principles of international human rights, and - domestic law of member states under which orders for family support arise. - Tribunal’s legal approach and findings: - The Tribunal invoked “universally accepted principles of human rights” as a constraint on the Fund’s discretionary authority. - The Tribunal concluded that the earlier SRP provision—limiting child support orders that could be given effect under the SRP to those arising from a “marital relationship”—should not be allowed to debar the Applicants’ initial request. - The Tribunal explained the limited textual reach of the Fund’s written nondiscrimination provisions (noting they typically address employment-related discrimination) but held that universally accepted human rights principles form part of the Fund’s internal law and constrain its practices. - The Tribunal found that the SRP provision was “fundamentally defective as it failed to make adequate provisions for children born out of wedlock, a failure that was incompatible with the international standards of nondiscrimination that the Fund itself professes.” - The Tribunal distinguished questions of retroactive application of a revised Plan provision from the validity of the prior Plan provision in light of alleged impermissible discrimination. (Ms. “M” and Dr. “M”, para. 112.) ### Legal significance and doctrinal developments - The Tribunal’s 2006 jurisprudence reinforces that: - Universally accepted principles of human rights are part of the Fund’s internal law and can limit Fund discretion even where written rules do not explicitly address a specific form of discrimination (e.g., discrimination on the ground of birth). - The rule of nondiscrimination constrains both policy-making and administrative functions of the Fund. - The Fund’s written law (e.g., Rule N-2 of the Rules and Regulations) and subsequent policies manifest an institutional commitment to nondiscrimination on grounds such as “age, creed, ethnicity, gender, nationality, race, or sexual orientation,” supporting incorporation of broader human-rights norms into review of administrative acts. *IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. V* ### 11.3 on children born out of wedlock was “not compatible with contempo- ### DEVELOPMENTS IN THE JURISPRUDENCE OF IMF ADMINISTRATIVE TRIBUNAL: 2006 ### SRP Section 11.3 — children born out of wedlock and universally accepted human rights - The Tribunal found that the “marital relationship” requirement in the earlier iteration of SRP Section 11.3 produced a disparate—and discriminatory—effect with respect to children born out of wedlock, because the policy treated child support awards as incidental to dissolution of marriage and payment of spousal support. (Ms. “M” and Dr. “M”, para. 130.) - The Tribunal applied “universally accepted principles of human rights” as a constraint on the Fund’s discretionary authority when a regulatory decision was alleged to violate such principles. (Ms. “M” and Dr. “M”, paras. 132–133, 125.) - Article 25 of the Universal Declaration of Human Rights (1948) was cited: “All children, whether born in or out of wedlock, shall enjoy the same social protection.” (Id., para. 133.) ### Revision of the SRP and immediate legislative change - In December 2001, the Staff Retirement Plan was amended to authorize payment of a portion of a Fund retiree’s pension for child support “. . . pursuant to a legal obligation arising from a marital relationship or pursuant to a legal obligation to make child support payments” (emphasis supplied), thereby abolishing the requirement that the court order “aris[e] from a marital relationship.” (Id., paras. 121–122.) - The benefit payable language preserved in the record: “The benefit payable shall not exceed: . . . when payable to a child or children or their parents or guardians, 16/3 percent of the benefit payable to the participant or retired participant whenever the court ordered obligation is for support of his child or children. . . .” (Id., note 43.) ### Standard of review and degree of scrutiny - The Tribunal acknowledged deference is at its height when reviewing regulatory decisions, but held that an allegation that a regulatory decision violated a universally recognized human right requires a greater degree of scrutiny over the Fund’s exercise of discretion. (Id., para. 116; para. 117.) - The Tribunal emphasized that “[t]he child is innocent of the marital—or non-marital—relationship of his or her parents and, as an innocent human being, is entitled to the human right of being free from impermissible discrimination.” (Id., para. 130.) ### Interpretation of Section 11.3 and the “public policy” of the forum - The Tribunal confronted whether Section 11.3 limited relief to court orders that expressly specified that an alternate payee was to receive pension benefits, or whether a broader interpretation was permitted in light of the Plan text, underlying Fund policies, the IMF’s multinational character, and the circumstances of the case. The Tribunal concluded that a broader interpretation was admissible. (Id., para. 139.) - The Tribunal observed that Section 11.3’s text did not clearly state a requirement that a support order specifically refer to the Staff Retirement Plan. (Id., paras. 146, 152, 156.) - The Tribunal identified a competing policy in the provision to “encourag[e] enforcement of orders for family support and division of marital property,” counseling a more inclusive interpretation that considers effects on spouses and children seeking to obtain court-ordered support. (Id., para. 140, quoting Mr. “P” (No. 2), para. 151.) ### Multijurisdictional considerations and forum public policy - The Tribunal held that rights of a child born out of wedlock who is raised in a foreign jurisdiction should not depend on the particularities of District of Columbia, Maryland, or Virginia law; the Fund must give due weight to legal principles and procedures of a variety of jurisdictions. (Id., para. 155.) - The Tribunal noted that national courts may be reluctant to issue orders specifying payment from the SRP because of the Fund’s immunity from legal process, providing reason not to require national courts to engage specifically the question of payment out of the SRP. (Id., para. 157.) - The Tribunal concluded that Section 11.3 may be interpreted in circumstances to permit giving effect to support orders that do not expressly direct payment from pension benefits. (Id., para. 158; para. 160.) ### Factors permitting giving effect to foreign orders lacking express pension direction - The Tribunal held the SRP Administration Committee and the Tribunal may weigh factors such as: - the foreign residence of the child and her guardian; - the Applicants’ asserted and apparent difficulty or inability in obtaining a court order in Germany that in terms specifies what a QDRO specifies; - the difficulty or inability of the Applicants to move effectively against other assets of the retiree; - the bad faith and questionable tactics displayed by the retiree in evading paternal responsibilities. (Id., para. 155; para. 160.) - Applying these considerations, the Tribunal ordered that the German support orders be given effect pursuant to Section 11.3 of the Staff Retirement Plan, concluding the dispute over validity including paternity and domicile law claims was not bona fide. (Id., paras. 174–224 and Decision; para. 155.) ### Challenges to managerial discretion: staff appointments (overview) - Several 2006 Applications required review of challenges to managerial discretion in staff appointments: - Ms. “T”, Applicant v. IMF, IMFAT Judgment No. 2006-2 (June 7, 2006) — non-conversion sustained. - Ms. “U”, Applicant v. IMF, IMFAT Judgment No. 2006-3 (June 7, 2006) — non-conversion sustained. - Mr. “O”, Applicant v. IMF, IMFAT Judgment No. 2006-1 (February 15, 2006) — reemployment terms after Executive Board advisor service examined. ### Non-conversion of fixed-term appointments — standards and application - The Fund’s Guidelines for Fixed-Term Appointments (1995) set three criteria for conversion: (a) performance during the fixed term, (b) potential for a career with the Fund, and (c) the staffing needs of the organization. (Ms. “T”, para. 32; Ms. “U”, para. 32.) - The Guidelines require a “clearly positive assessment for taking the important step of committing the Fund to providing a career opportunity for the individual.” (Guidelines for Fixed-Term Appointments (1995); Ms. “T”, paras. 32–35; Ms. “U”, paras. 32–35.) - The Tribunal emphasized conversion is a performance-based decision and a managerial responsibility; the burden of proof rests with the applicant challenging non-conversion. (Report of the Executive Board, p. 19; Ms. “T”, para. 36; Ms. “U”, para. 36; Ms. “T”, para. 37; Ms. “U”, para. 37.) - The Tribunal required principles of fairness: periodic evaluation, adequate warning of performance deficiencies, and reasonable opportunity to remedy deficiencies. (Ms. “T”, para. 38; Ms. “U”, para. 38.) - Applying these standards, the Tribunal found that in each case the Fund fairly considered relevant evidence and that applicants’ progress remained insufficient; decisions not to convert were taken with deliberation and without improper motive. (Ms. “T”, para. 53; Ms. “U”, para. 53; para. 45; para. 49.) - Claims of discrimination on the basis of race or nationality were rejected as unsubstantiated. (Ms. “T”, paras. 49–50; Ms. “U”, para. 50.) ### Return to Fund employment after service as Advisor to an Executive Director (Mr. “O”) - Fund regulations require resignation from Fund staff to take up an appointment with the IMF Executive Board as Advisor to an Executive Director; GAO No. 16 governs terms for return to the Fund. (Mr. “O”, para. 76.) - The controversy concerned whether the Fund could vary the terms of reemployment and whether the Applicant had agreed to such variations. - The Fund’s May 1995 written communication stated terms were “agreed” and indicated reemployment would terminate at the end of February 2000 (Applicant’s 55th birthday) when he would become eligible for a Fund pension. (Id., paras. 82–83.) - The Tribunal found no contemporaneous objection by Mr. “O” and concluded he acquiesced in the Fund’s position affording limited reentry; for years he received benefits of the arrangements and later repudiated their burdens. (Id., paras. 83, 85, 97.) - The Tribunal held it was within the Fund’s discretionary authority to provide a limited-duration reentry carrying some staff benefits provided the staff member agreed or acquiesced. The Tribunal concluded Mr. “O” assented to the 1995 arrangements by acceptance of benefits and failure to question the arrangements until after those benefits were exhausted. (Id., paras. 82–83; para. 97.) ### Admissibility of Applications and exhaustion of administrative review - Of six Judgments in 2006, four addressed admissibility questions. Examples: - Ms. “AA”, Applicant v. IMF (Admissibility), IMFAT Judgment No. 2006-5 (November 27, 2006): Respondent’s Motion for Summary Dismissal granted because Ms. “AA” failed to initiate administrative review in a timely manner. - Mr. “O” and Ms. “M” and Dr. “M”: Tribunal concluded “exceptional circumstances” excused delay and proceeded to merits. - Baker et al., Applicants v. IMF (Dismissal as Moot), IMFAT Judgment No. 2006-4 (June 7, 2006): Applications dismissed as moot. - Exhaustion requirement under Article V (1) of the Statute: application may be filed only after applicant has exhausted all available channels of administrative review. (Article V (1) of the Statute.) - The Tribunal reaffirmed its authority to examine independently the presence and impact of “exceptional circumstances” in determining whether exhaustion and timeliness requirements have been met, as articulated in Estate of Mr. “D” (IMFAT Judgment No. 2001-1). (Estate of Mr. “D”, para. 66; Ms. “AA”; Mr. “O”; Ms. “M” and Dr. “M”.) - Determining when an applicant was on notice of the contested administrative act is central to assessing timeliness of administrative review; the Tribunal addressed this issue with differing outcomes in Ms. “AA” and Mr. “O”. (Ms. “AA”; Mr. “O”.) - In Ms. “AA”, it was undisputed she did not initiate administrative review until more than two years after the non-conversion decision and almost 20 months after related supervisory actions alleged to constitute harassment. (Ms. “AA”.) *IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. V* ### conclusion of her employment with the Fund. Ms. “AA” sought to invoke ### DEVELOPMENTS IN THE JURISPRUDENCE OF IMF ADMINISTRATIVE TRIBUNAL: 2006 ### Discovery rule and timeliness - Ms. “AA” sought to invoke a “discovery rule” to excuse delay, asserting she only became aware of the harassment after leaving the Fund and after her successor allegedly alerted her and others in the division. - The Tribunal concluded that “even if a ‘discovery rule’ were to be applied, the facts as presented by Ms. ‘AA’ simply do not bear out her assertion that she did not have knowledge of the elements of her claim until January 2005.” - The Tribunal noted Applicant’s own pleadings showed she “knew in late 2003 of the fact that she was being harassed and that her performance appraisals did not reflect her true performance.” - Applicant had made “pleas of assistance” during employment to Fund officials including her Senior Personnel Manager, the Ombudsperson, and the Health Services Unit. - The Tribunal found facts known within the prescribed period were sufficient to make out a claim of harassment under the Fund’s internal law and concluded the Applicant had not established “exceptional circumstances” to excuse substantial delay in requesting review. ### Notice, administrative acts, and successive acts - In Mr. “O”’s case, the Fund maintained he was on notice in 1995 of conditions placed on his return and thus should have requested review within six months of that notice; the Applicant contended review was not required until conclusion of his final reappointment in 2003. - The Tribunal observed the Fund’s May 1995 communication did not preclude the possibility that employment might be extended beyond February 2000 and that the Fund had extended reemployment into September 2003. - The Tribunal considered whether acts subsequent to the 1995 act may be separate “administrative acts” and concluded they may: “While the 1995 act made possible subsequent acts, it did not necessarily determine them. . . . The decision of October 30, 2002 did adversely affect Applicant because it resulted directly in the termination of his Fund employment, an event that was not necessarily required by terms of the 1995 guarantee.” - The Tribunal cited “undeniable ambiguity” in reappointment letters and Personnel Action forms characterizing employment as both “regular” and “fixed-term.” - Treating October 30, 2002 as the contested administrative act, the Tribunal assessed whether timely administrative review had been initiated for exhaustion of remedies under Article V of the Tribunal’s Statute. ### Exceptional circumstances and waiver of time limits - The Tribunal confirmed staff members “ordinarily are held to a knowledge of the organization’s administrative review procedures” and that it is “highly desirable that these procedures exclusively be followed.” - In Mr. “O”, the Tribunal found that management’s response to the Applicant’s complaint could, in unusual circumstances, “exceptionally stand in lieu of seeking administrative review pursuant to the procedures of GAO No. 31” where management elected to review the complaint or treated correspondence as requests for review. - The Tribunal held that management’s communications and the Deputy Managing Director’s investigations “may be said to have served the functional purposes of administrative review.” - In Ms. “M” and Dr. “M”, the Tribunal found Applicants (non-staff members contesting denials under SRP Section 11.3) could not be assumed to know Fund recourse procedures and that the Fund had provided no information on recourse procedures in 1999 and 2002. - The Tribunal concluded that, given the absence of notice by the Fund and uncertainty as to availability of recourse, “exceptional circumstances” justified waiver of the time limits prescribed under Article VI of the Statute. - The Tribunal noted additional grounds supporting waiver for Ms. “M” and Dr. “M”: Applicants are non-staff members; Applicants’ conduct showed prompt attention where notified; internal recourse availability appeared uncertain to both Fund and Applicants; and there was no evidence Applicants knowingly relinquished Tribunal review in favor of an incomplete alternative legislative remedy. - The Tribunal observed that following its 2001 decisions in Mr. “P” (No. 2) and Estate of Mr. “D”, Respondent was on notice (1) that Applicants had standing to bring an Application to the Administrative Tribunal, and (2) Respondent was obliged to inform them of that avenue of recourse. ### Mootness of applications challenging compensation decision - Seven staff members had challenged a “regulatory decision” amending staff compensation; in 2005 the Tribunal denied a Motion for Summary Dismissal, concluding the decision had “some present effect” on Applicants’ positions and “will be applied in 2006.” - On April 14, 2006 the IMF Executive Board adopted a different decision on compensation that, by its terms, “supersede[d]” the January 24, 2005 decision. - The Fund moved to dismiss the Applications as moot. - The Tribunal observed the January 24, 2005 decision “has been superseded by virtue of the adoption of a comprehensive new system of compensation approved by the Executive Board on April 14, 2006,” and concluded the contested decision no longer had any “present effect.” The Tribunal dismissed the Applications as moot. *International Monetary Fund — Developments in the Jurisprudence of the IMF Administrative Tribunal: 2006* ### Conclusion ### Conclusion ### Application of universally accepted human rights principles - In Ms. “M” and Dr. “M”, the Tribunal applied “universally accepted principles of human rights” as an unwritten source of the Fund’s internal law. - The Tribunal concluded such principles operate as a constraint on the Fund’s discretionary authority even when the right at issue—freedom from discrimination on the ground of birth out of wedlock—was not expressly included in the Fund’s written law. - The Tribunal held that an earlier iteration of the Staff Retirement Plan, subsequently amended to remove the offending provision, did not debar the Applicants’ claims for the period during which the provision had governed. ### Interpretation of the Staff Retirement Plan and cross-jurisdictional considerations - The Tribunal recognized that the Fund as a global organization must give due weight to legal principles and procedures of a variety of jurisdictions. - To resolve potential conflicts in the treatment of Fund staff and dependents from differing legal systems, the IMFAT invoked the “public policy” of its forum and rejected a narrow interpretation of the pertinent Plan provision. - The Tribunal permitted giving effect under the Plan to court orders for child support that did not specify that the support payments be drawn from the retiree’s IMF pension benefits. ### Managerial discretion, appointments, and reemployment - In Ms. “T” and Ms. “U”, the Tribunal confirmed the Fund’s broad authority to take performance-based decisions as to the conversion of fixed-term appointments, subject to: - requirements of fair appraisal, and - opportunity to remedy perceived performance deficiencies imposed by the Fund’s internal law and supported by general principles of international administrative law. - In Mr. “O”, the Tribunal examined the reach of the Fund’s discretionary authority to formulate terms of reemployment of a former staff member who resigned to take up employment with the IMF Executive Board. - The Tribunal concluded the Fund had not abused its discretion when it conditioned the Applicant’s reemployment on his acceptance of an appointment of limited duration where the evidence showed the former staff member assented to such arrangement. ### Admissibility, exhaustion of administrative remedies, and statute of limitations - In Ms. “AA”, the Tribunal rejected the Applicant’s contention that “exceptional circumstances” excused failure to initiate timely administrative review on the ground that she did not have knowledge of the elements of her claim until after the period had passed; the Tribunal found the Applicant had knowledge of her claim within the prescribed period. - In Mr. “O”, the Tribunal considered when the Applicant had knowledge of an administrative act adversely affecting him, identifying a series of acts that the Applicant might have challenged. - Taking account of the purposes of the requirement to exhaust channels of administrative review and the Fund’s communications to Mr. “O”, the Tribunal held that “exceptional circumstances” permitted the conclusion that the Applicant had satisfied the exhaustion requirement. - In Ms. “M” and Dr. “M”, similar considerations supported a conclusion of “exceptional circumstances” as to both exhaustion of administrative review and waiver of the Tribunal’s statute of limitations for non-staff members challenging denial of Section 11.3 requests under the Staff Retirement Plan. - The Judgment in Baker et al. (2006) underscored the significance of the “adversely affecting” requirement of Article II of the Statute as an essential condition for the justiciability of an Application where intervening events rendered moot the “present effect” of the contested administrative act. *Developments in the Jurisprudence of IMF Administrative Tribunal: 2006, IMF Administrative Tribunal Reports, Vol. V.* ### 13. As appears below in the Tribunal’s disposition of the merits of the ### JUDGMENT NO. 2006-1 (MR. "O") ### Tribunal’s procedural decision - The Tribunal reached a decision on the merits based on examination of the written record, including proceedings before the Grievance Committee. - The Tribunal found the record "sufficiently clear" despite ambiguities and determined that oral proceedings were not "necessary for the disposition of the case." (Rule XIII, para. 1.) - The Tribunal noted that, in the Grievance Committee’s proceedings, Applicant had the opportunity to set out his understanding of the facts in dispute. ### Factual background of the case - Applicant began his career with the Fund on July 12, 1982 as an Economist at grade H (equivalent to A13) in "Department 1." - January 1988: Mr. "O" transferred to "Department 2," at Grade A13. - 1995: Applicant resigned from the staff to take up the position of Advisor to an Executive Director. - 1999: Applicant was reemployed with the Fund; terms of resignation, reemployment in 1999, and ultimate separation form the basis of the dispute. - Central contested document: letter of May 4, 1995 from the Chief, Staff Development Division (SDD), Human Resources Department (HRD), which states in pertinent part: - "will guarantee your reappointment to the staff until the end of February, 2000." - "every effort will be made at that time to place you in a suitable Resident Representative assignment." - "Your reappointment to the staff will be at a salary level reflecting your current salary plus an adjustment for the period you have served in [the Executive Director]’s office." - Dispute over the May 4, 1995 letter: - Applicant’s view: the phrase "will guarantee your reappointment to the staff until the end of February, 2000" meant the Fund would hold open the guarantee of reemployment through that period. - Fund’s view: the provision set a terminal date for any period of reemployment following the Executive Board service. ### Key documents, appointments, and extensions (exact dates and terms) - July 14, 1999: Letter from Chief, Recruitment Division, HRD offering a regular appointment as Economist in "Department 2", Grade A13; stated: "Your reappointment to the Fund staff is from July 1, 1999 to February 29, 2000, as outlined in [the Chief, Staff Development Division]’s memorandum to you dated May 4, 1995." - August 17, 1999: Applicant accepted the July 14, 1999 appointment form; Personnel Action form shows "Fixed-term appointment to Feb. 29, 2000" struck out to say "Regular" appointment, effective July 1, 1999. - March 8, 2000: Offer of "an extension of your regular appointment . . . through May 31, 2000"; Applicant signed March 9, 2000; Personnel Action form indicates "Extension of Regular appointment," effective March 1, 2000. - June 1, 2000: Offer and acceptance of "an extension of your regular appointment . . . through July 31, 2000"; Personnel Action form states "Extension of fixed-term appointment," effective June 1, 2000. - July 21, 2000: Offer of "extension of [his] regular appointment" through September 15, 2000; Applicant signed July 27, 2000; Personnel Action form states "Extension of Fixed Term Appointment," effective August 1, 2000. - August 15, 2000: Offer (accepted later) of "an extension of your appointment through September 13, 2002" to assume position of Resident Representative in "Department 1"; letter included HRD Director attachment clarifying conditions and warning that shortcomings "will result in the prompt termination of your resident representative assignment . . . . [and] your staff appointment will also be terminated." - September 16, 2000: Applicant took up Resident Representative assignment; appointment extended for an additional two years through September 15, 2002 (expressly for Resident Representative assignment). - August 2002: SDD Chief emailed applicant summarizing Fund’s view that reappointment had been "guaranteed through February 2000" and that the Resident Representative appointment was "of a fixed-term duration" scheduled to end on September 15, 2002; SDD Chief noted HRD would not object to further extension if Department 1 wished, but "in the absence of either of these occurrences, your appointment will end on September 15, as scheduled." - October 30, 2002: Deputy Director, Human Resources Department communicated extension of Resident Representative assignment "for a third year, through September 9, 2003" and stated "a final extension to your staff appointment is being made through September 9, 2003." - November 21, 2002: Letter informing Applicant "your appointment with the International Monetary Fund will be extended through September 9, 2003." Applicant declined to sign that letter. ### Applicant’s complaints, allegations, and requests - November 24, 2002 letter to the Managing Director identified "points at issue" as "(1) my career development and (2) my current employment status with the Fund." - Allegations in November 24, 2002 letter: - Applicant claimed he had remained in an entry-level position since 1982 and that HRD staff had "constantly subjected me to a discriminatory and humiliating treatment" with reasons to believe "the main thing some HRD staff members have against me is my racial origin." - Applicant alleged HRD transformed his "regular employment status into a 'Fixed term appointment' . . . without my consent" when appointed Advisor to Executive Director in 1995. - Applicant asserted he had requested review under the Discrimination Review Exercise (DRE) in the 1990s but the request "had not been 'granted at the time because I was still an 'Advisor to an Executive Director,'' and that "Since then, there has never been a follow-up." - Applicant requested Fund management to: - "(1) reinstat[e] my regular employment status and (2) determin[e] the grade, which would be today commensurate with my academic background and professional experience." - Applicant wrote again on March 10, 2003 disputing that the former Deputy Managing Director had proposed a fixed-term return; Applicant claimed he was told only it was "advisable for me to return to the staff before my 55th birthday, i.e. February 2000." - Applicant also asserted he was not aware he had been put on probation in the framework of the 1994 APR and had never been given a write-up of his APR for that year. ### Management’s findings and responses (exact statements and dates) - January 17, 2003: Deputy Managing Director responded that "management has carefully reviewed your case" and found no evidence of discrimination by HRD; concluded Applicant’s performance did not support promotion. - On employment status: concluded "the decision to offer you a reemployment guarantee on a fixed-term basis was warranted since your performance was considered unsatisfactory and in need of improvement, and your department had decided to place you on probation." - Stated that the former Deputy Managing Director "considered that the reemployment guarantee that is usually given to a staff member resigning to transfer to an Advisor position in an Executive Director’s office should be for a fixed-term period and not open-ended." - April 15, 2003: Deputy Managing Director, after "thoroughly review[ing] the facts of the case and . . . perus[ing] the related documentation," concluded: - Had Mr. "O" remained in "Department 2," his performance would have been rated "4 (unsatisfactory)" and he "would have been placed on probation." - The former Deputy Managing Director had instructed HRD that reappointment "should not be unconditional but should be guaranteed only until February 2000" and that efforts should be made to find a resident representative post at the end of the Executive Director assignment. - Both elements were reflected in SDD Chief’s May 4, 1995 letter "which was cleared by, and copied to, [the former Deputy Managing Director]." - Management "finds no justification for overturning [the former Deputy Managing Director]’s original decision and changing your employment status." - April 15, 2003: Deputy Managing Director warned Applicant that failure to sign the offered extension in fall 2002 would result in separation from the staff. ### Applicant’s final communications and unsigned appointment - April 29, 2003: Applicant wrote a third letter to the Managing Director, again contesting the 1994 performance appraisal, alleging bias and manipulation because the 1994 APR was not completed, and disputing the October 30, 2002 appointment letter. - Applicant declined to sign the October 30, 2002 "final extension" letter of appointment; the letter of appointment for his "final extension" therefore remained unsigned. *International Monetary Fund Administrative Tribunal, Judgment No. 2006-1 (Mr. "O")* ### 33. On July 2, 2003, Applicant was advised by HRD that as he had refused ### imfat-5 - 33. On July 2, 2003, Applicant was advised by HRD that as he had refused ### Chronology of key administrative actions and dates - July 2, 2003: HRD advised Applicant that because he had refused to sign the letter of appointment he should make arrangements to vacate his Resident Representative post and that the effective date of his separation would be August 1, 2003. - July 15, 2003: Applicant responded, asserting his 1999 letter of appointment evidenced a “regular appointment” and questioning why an extension was required; he requested to defer return to Washington, D.C. until the first week of September. - July 29, 2003: HRD Director offered to extend the appointment through September 9, 2003 if Mr. “O” returned the signed letter by the following day. - August 1, 2003: Applicant signed the appointment letter (signature date on the letter: August 1, 2003). - August 4, 2003: Applicant appealed “the decision to separate me from the Fund against my will,” contending discrimination and requesting administrative or Grievance Committee review. - November 21, 2003: Applicant’s counsel submitted a “Request for Administrative Review and Provisional Relief” to the HRD Director, alleging wrongful termination, invasion of privacy, and racial discrimination; sought administrative leave as provisional relief. - December 12, 2003: HRD Director authorized unpaid administrative leave from September 10 through December 31, 2003 (later extended through February 27, 2004) and informed counsel that Applicant would become eligible to begin receiving his Fund pension as of January 1, 2004; HRD requested more concrete information before undertaking administrative review. - December 16, 2003: Applicant’s counsel again sought administrative review of alleged wrongful termination and discrimination. - December 22, 2003: HRD Director agreed that HRD would undertake the review. - March 19, 2004: HRD Director communicated the results of administrative review, reserving the Fund’s right to challenge Grievance Committee jurisdiction on grounds of untimeliness; concluded Applicant’s interpretation of the May 4, 1995 letter was incorrect, that Applicant’s signature to the July 14, 1999 reemployment letter and subsequent extensions unambiguously accepted a limited term, and that the October 30, 2002 “final extension” put Applicant “undeniably on notice” that his Fund employment would terminate on September 9, 2003; administrative review did not address discrimination contentions. - April 14, 2004: Applicant filed a Grievance with the Fund’s Grievance Committee contesting HRD’s decision to terminate his employment and alleging discriminatory impact on his career. - June 30, 2004: Grievance Committee issued an Order granting the Fund’s Motion to Dismiss the Grievance on the basis that Applicant failed to exhaust administrative remedies in a timely manner pursuant to GAO No. 31. - August 5, 2004: Applicant filed his Application with the Administrative Tribunal. ### Channels of administrative review — procedural findings - Grievance Committee determination (June 30, 2004): - Found Applicant had agreed to limited-term reemployment at the time he resigned in 1995. - Held that if the October 30, 2002 “final extension” letter was the decision point, Applicant waited more than a year (until November 21, 2003) before initiating formal administrative review pursuant to GAO No. 31. - Concluded GAO No. 31, Section 6.07 “day for day” extension applies to staff on mission or in recognized leave status and was inapplicable to Applicant serving in an assigned duty station overseas during the period in question. - Held Applicant’s broad claim of discriminatory treatment likewise was untimely. - HRD Director’s administrative review (March 19, 2004): - Treated Applicant’s request as untimely but proceeded with review while reserving the Fund’s right to challenge Grievance Committee jurisdiction. - Concluded Applicant accepted a limited term via the July 14, 1999 reemployment letter and its extensions; October 30, 2002 letter put Applicant on notice of termination effective September 9, 2003. - Did not address discrimination allegations. ### Applicant’s principal contentions (admissibility and merits) - Admissibility assertions: - Until Respondent acted on the claim that Applicant’s status was fixed-term, there was no basis for a grievance; termination triggered the grievance and Applicant sought administrative review within six months of that act. - Earliest Applicant could have known of termination as a fixed-term appointment was October 30, 2002, when Fund communicated “a final extension to your staff appointment is being made through September 9, 2003.” - Applicant served overseas as Resident Representative and was “working on Fund business outside Washington, D.C.” until September 9, 2003; pursuant to GAO No. 31, Section 6.07, he is entitled to a 314 day suspension of time for seeking administrative review. - Claim of discrimination is timely because it involves a continuing harm. - Merits assertions: 1. May 4, 1995 letter unambiguously guaranteed reappointment to Fund staff as long as Applicant returned to staff status by end of February, 2000 and did not condition reappointment upon retirement at age 55. 2. Applicant accepted the Advisor to an Executive Director position only because the Fund guaranteed return to a regular staff appointment thereafter. 3. The Deputy Managing Director’s instruction to the SDD Chief was not communicated to Applicant; alleged lack of meeting of the minds and possible deliberate concealment of intent in the May 4, 1995 letter. 4. GAO No. 16 did not allow imposition of a fixed-term appointment on Applicant’s return; reappointment without a break in service means reappointment as regular staff unless specified otherwise. 5. GAO No. 3, Rev. 5 provides only two appointment types, regular and fixed-term, all to be in writing; no rule allows “hybrid” appointments. 6. Termination on September 9, 2003 of a regular staff member under rationale of expired fixed-term appointment violated GAO No. 16; termination without due process and without appropriate severance was an abuse of power. 7. If no position was available after completion of Resident Representative assignment, the Fund should have invoked redundancy rules. 8. Probation was never communicated; performance evaluations on the Board and as Resident Representative were fully satisfactory. 9. Lack of career progression and treatment were impermissibly affected by racial discrimination; Applicant was treated disparately and guarantees of reemployment after Board service are typically unqualified. 10. Relief sought: - a finding that separation from service violated Fund regulations; - rescission of separation and reinstatement with retroactive compensation and benefits; - damages of two years’ net salary for mental and emotional suffering; - legal costs. ### Respondent’s principal contentions (admissibility and merits) - Admissibility assertions: 1. Applicant understood and accepted in 1995 that reemployment guarantee was conditional upon concluding reemployment by end of February 2000; Applicant’s November 21, 2003 request was filed more than eight years after first notice of contested decision. 2. Upon reemployment in July 1999, Applicant accepted without objection the limited term and subsequent fixed end-date extensions. 3. Applicant was on notice as of November 2002 of the final termination date but did not seek administrative review until a year later. 4. GAO No. 31, Section 6.07 day-for-day extension is not applicable to excuse Applicant’s failure to initiate administrative review while serving as Resident Representative away from Washington, D.C. 5. Mere expiration of an appointment whose end-date had earlier been determined does not constitute a new decision. 6. Discrimination contentions are also untimely. - Merits assertions: 1. Fund regulations do not require an unconditional reemployment guarantee to a staff member who resigns to serve as Advisor to an Executive Director. 2. Fund reasonably rejected Applicant’s request for unconditional reemployment guarantee for reasons related to his performance history and offered a fixed-duration reemployment guarantee sufficient to bridge to a Fund pension at age 55 in February 2000. 3. Decision to offer limited-duration reemployment was within management’s unilateral prerogative and not contrary to Fund rules. 4. Fund exercised discretion reasonably and generously. 5. A “hybrid” appointment (limited duration with benefits of regular employment) was an accommodation advantageous to Applicant. 6. Applicant knew or should have known his performance was less than satisfactory. 7. Record controverts the contention that discriminatory treatment impeded Applicant’s Fund career. ### Tribunal’s consideration on admissibility and exhaustion of remedies - Legal framework: - Article V, Section 1 of the Tribunal’s Statute requires exhaustion of available channels of administrative review before filing an Application. - Tribunal’s ratione materiae jurisdiction is limited to challenges to the legality of an “administrative act” defined as “. . . any individual or regulatory decision taken in the administration of the staff of the Fund.” - To resolve Respondent’s admissibility challenge, the Tribunal must determine: - (a) which “administrative act” or acts are at issue before the Tribunal; and - (b) when Applicant initiated administrative review of that act or acts. - Tribunal may consider whether exceptional circumstances excuse any delay in seeking administrative review (citing Estate of Mr. “D”, IMFAT Judgment No. 2001-1, para. 102). - Role of Grievance Committee findings: - The Tribunal notes the Grievance Committee’s decision that Applicant’s Grievance was barred as untimely under GAO No. 31. - The Tribunal follows Estate of Mr. “D” in treating the Grievance Committee’s jurisdictional determination as “relevant to but not necessarily dispositive” of whether administrative review channels were exhausted for purposes of Tribunal admissibility. - The Tribunal emphasizes its authority to decide independently whether channels of administrative review have been exhausted because Tribunal review prevents preclusion of remedies where merited and ensures recourse procedures are complementary and effective. *IMF Administrative Tribunal, Judgment No. 2006-1 (Mr. "O"), IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. V* ### 49. Accordingly, the Tribunal has held that it has the authority to consider ### JUDGMENT NO. 2006-1 (MR. "O") ### Authority to consider "exceptional circumstances" and importance of timeliness - The Tribunal has authority to consider the “presence and impact of exceptional circumstances” at anterior stages of the dispute resolution process. - In evaluating factors that may excuse failure to initiate administrative review on a timely basis, the Tribunal shall consider “. . . the extent and nature of the delay, as well as the purposes intended to be served by the requirement for exhaustion of administrative remedies.” (para. 108) - The Tribunal affirmed the importance of timely pursuit of administrative review: - “Prompt exhaustion of remedies provides an early opportunity to the institution to rectify possible errors—when memories are fresh, documents are likely to be in hand, and disputed decisions are more amenable to adjustment. This purpose would be significantly undermined if the Tribunal were to condone long and inexcusable delays in the invocation of these remedies, as is the case here.” (Alcartado, AsDBAT Decision No. 41, para. 12) (para. 95) - “. . . in view of the importance of exhaustion of administrative remedies and of adherence to time limits in legal processes, such requirements should not be lightly dispensed with and ‘exceptional circumstances’ should not easily be found. Applicants having knowledge of internal review requirements may not simply choose to ignore them . . . .” (para. 104) ### Identification of the contested "administrative act" or acts - The Tribunal must identify which administrative act(s) are being challenged to assess exhaustion of remedies under Article V, Section 1. - Respondent’s position: - The decision at issue is the decision initially establishing that Applicant was serving on an appointment with a fixed end-date, a decision the Fund maintains took place in 1995 (but no later than October 2002). - Applicant’s position: - The contested decision is separation from service on September 9, 2003, “at the initiative of the Fund,” and “Illegal conversion of Appointment from ‘regular’ to ‘fixed term’ . . . notified to Applicant without explanation in a document dated November 21, 2002.” - The Tribunal posed whether there were two relevant administrative acts under Article II: 1. The 1995 decision of the Fund to guarantee reemployment only through February 2000. 2. The “final extension” of Applicant’s appointment, notified October 30, 2002 and expiring September 9, 2003. - Findings regarding the 1995 decision: - The May 4, 1995 letter stating “. . . the Fund will guarantee your reappointment to the staff until the end of February, 2000,” can be read as a guarantee of reemployment up to a particular date but does not necessarily preclude extension beyond that date. - The Fund acted on a series of occasions to extend Applicant’s reemployment beyond the guaranteed date of February 2000, for approximately two and one-half years, into September 2003. - The 1995 decision had “some present effect” and thus adversely affected Applicant under Article II of the Statute (see Baker et al., IMFAT Judgment No. 2005-3, paras. 19-21). (paras. 53–55, 56) - Conclusion on separate acts: - Subsequent acts (including the October 30, 2002 decision) may be considered separate “administrative acts” subject to challenge. The October 30, 2002 decision adversely affected Applicant because it resulted directly in termination of Fund employment, an event not necessarily required by the 1995 guarantee. (para. 56) ### Notice from reemployment letters and subsequent extensions - Key dates and documentary facts: - Applicant signed acceptance of the 1999 reappointment on August 17, 1999; the reappointment specified “[y]our reappointment to the Fund staff is from July 1, 1999 to February 29, 2000 . . . .” (para. 58) - Less than 6 months later, within the period during which Applicant would have been required to initiate administrative review pursuant to GAO No. 31, Applicant was offered an extension effective March 1, 2000. (para. 58) - Ambiguity in appointment documents: - Reappointment letters often used the term “regular appointment” while designating a termination date, creating a “hybrid” appointment (regular benefits with fixed duration). - Respondent explained “regular appointment” usage was administrative to indicate eligibility for staff benefits despite fixed duration. - The ambiguity raises whether Applicant was justified in not challenging the fixed-term provision at the time of those appointments. (para. 59) - Applicant’s own statement: - In a March 10, 2003 communication to the Managing Director, Applicant asserted that “[w]hen I returned to staff in July 1999, I was surprised to learn from HRD that I had become a fixed-term employee and was expected to leave the Fund by end of February 2000.” This shows Applicant recognized the Fund’s position that a limited employment term governed in July 1999. (para. 60) ### Timeliness of administrative review regarding the October 30, 2002 “final extension” - Tribunal conclusion: - The October 30, 2002 decision offering a final extension was a separate administrative act adversely affecting Applicant and could be challenged. (para. 61) - Respondent’s timeliness argument: - Applicant failed to initiate timely administrative review because the formal request to Director of Human Resources was submitted on November 21, 2003 (more than six months after October 30, 2002). (para. 61) - Applicant’s actions and communications: - On August 4, 2003 Applicant wrote to the HRD Director, stating he was “appealing the decision to separate me from the Fund against my will,” asserting discriminatory terms and seeking legal interpretation via Administrative Review or the Grievance Committee. (para. 62) - Exceptional circumstances considered: - Whether pursuit of the complaint through the Managing Director or Applicant’s overseas posting excused failure to file a formal request with the Director of Human Resources within six months of October 30, 2002 is addressed. - Did Applicant initiate timely review on November 24, 2002 by addressing his complaint to the Managing Director? - Respondent: pursuing the complaint to the Managing Director rather than through proper avenues gives no special status; staff must file through proper channels timely. (para. 64) - Tribunal: when a staff member brings a complaint to the highest levels and management elects to review rather than advise the prescribed channel or assert untimeliness, that election by management can exceptionally stand in lieu of seeking administrative review pursuant to GAO No. 31. (para. 65) - Deputy Managing Director’s responses of January 17, 2003 and April 15, 2003 suggest management regarded Applicant’s letters of November 24, 2002 and March 10, 2003 as requests for review and “thoroughly reviewed the facts.” The Tribunal has taken account of Fund communications in assessing staff actions in seeking further review. (paras. 66–66) - The Deputy Managing Director’s investigations may have served the functional purposes of administrative review; precedent in Estate of Mr. “D” noted Fund review on several occasions as a factor in finding exceptional circumstances. (para. 67) - Effect of Applicant’s overseas assignment: - GAO No. 31, Section 6.07 provides extension “day for day” for time limits in Sections 6.02, 6.03, 6.04 and 6.06 for each day the grievant is working on Fund business outside Washington D.C. or is in recognized leave status, except for administrative leave and separation leave. (para. 69) - Tribunal view: the “day for day” extension is meant to cover absences from Headquarters on missions overseas of limited duration, not the case of an official stationed abroad in resident status. A resident abroad has office facilities at hand and can exhaust prescribed channels within required time limits. (para. 70) - Applicant’s August 4, 2003 letter to HRD stated he was appealing the decision and that he “would like to return to Washington as soon as possible to organize my legal defense.” There is room to conclude this memorandum initiated a request for administrative review before the formal request on November 21, 2003. (para. 70) - Tribunal’s final timeliness finding: - Because Applicant launched his appeal by letters to the Managing Director one month after the October 30, 2002 final extension, the Tribunal concludes the claim of Mr. “O” is not time-barred. (para. 71) ### Admissibility of Applicant’s allegations of discrimination - Respondent challenges admissibility of discrimination allegations as untimely; Applicant contends the discrimination represents a “continuing harm.” (para. 72) - Precedent and approach: - In Mr. “F” (IMFAT Judgment No. 2005-1), the Tribunal reviewed allegations of incidents of religious hostility and workplace harassment over a career and, citing the Fund’s Discrimination Policy, considered whether Applicant had shown a “pattern of words, behaviors, action or inaction (such as the failure to take appropriate action in response to a complaint of discrimination), the cumulative effect of which is to deprive the individual of fair and impartial treatment.” (para. 73) - The Tribunal has taken cognizance of a pattern of conduct where separate administrative review had not been undertaken as to each individual act. In Mr. “F” the ultimate act of alleged discrimination had been subject to timely administrative review. (para. 73) *IMF Administrative Tribunal, Judgment No. 2006-1 (Mr. "O"), IMF Administrative Tribunal Reports, Vol. V* ### 74. As the Tribunal has concluded that Mr. “O”’s complaint that he was ### JUDGMENT NO. 2006-1 (MR. "O") — Separation, Reemployment Guarantee, and GAO No. 16 ### Tribunal’s scope on discrimination and time-bar - The Tribunal concluded that Mr. “O”’s complaint that he was impermissibly separated from service with the Fund, challenged in part as a culminating act of discrimination, is not time-barred. - The Tribunal may consider whether Applicant has put forth evidence sustaining a claim of discriminatory treatment in his career with the Fund. - Applicant expressly raised discrimination in communications of 2002 and 2003, in a formal request for administrative review to the Director of Human Resources, and in his Grievance. For example: - In his November 21, 2003 request for administrative review, he alleged the decisions in his case appeared to be “the culmination of a long history of discrimination against him.” - The Deputy Managing Director made express findings regarding Applicant’s contentions of discrimination. - The Tribunal notes precedent in Mr. “F” where the Tribunal: (a) upheld as a reasonable exercise of the Fund’s discretion the decision contested as the ultimate act of discrimination (abolition of position); and (b) sustained a claim of religious intolerance and workplace harassment and awarded relief on that ground. ### Applicable internal law: GAO No. 16, Rev. 5 (July 10, 1990), Section 6 — mandatory resignation and reemployment - GAO No. 16, Section 6 requires that a staff member serving as an Advisor to an Executive Director must resign from the staff for the duration of that service. - When resignation is made “with a written understanding with the Fund that at the conclusion of his service with the Executive Board he will be reappointed to the staff without a break in service,” additional provisions apply, including: - The Fund shall determine and record in writing before resignation “the period during which an understanding regarding reappointment to the staff applies.” (Section 6.04.2) - During Executive Board service, service credit and accrued benefits not available to the new position are held in abeyance until return to the staff; if reappointed without a break in service, such credit and benefits are restored. (Section 6.04.2) - A staff member reappointed in this manner shall not be eligible for resettlement benefits or the separation grant. (Section 6.04.2) - If a former staff member is not reappointed at conclusion of Executive Board service, he shall be paid the separation grant earned while on the staff and an amount in lieu of accrued annual leave outstanding on the date of resignation (subject to a maximum of 60 days); amounts are calculated on the basis of salary as of his last day on duty as a staff member. (Section 6.04.3) - These provisions indicate no assured right of reappointment; a former staff member who resigns to serve as an Advisor has no guaranteed right to reappointment to the staff. ### Factual dispute over the May 4, 1995 letter and the scope of the reemployment guarantee - Respondent’s position: - The May 4, 1995 letter memorialized an agreement that any reemployment of Mr. “O” following Executive Board service would terminate at the end of February 2000, when Applicant would reach his 55th birthday and become eligible for a Fund pension. - Respondent recounts internal exchanges leading to the letter: - On April 25, 1995, the Chief of the Staff Development Division (SDD Chief) informed the Deputy Managing Director of performance difficulties summarized in a February 10, 1995 memorandum and a 1994 performance report describing Applicant’s performance as “generally unsatisfactory,” recommending probation. - The SDD Chief reported that “[t]he initial reaction from Mr. [“O”] is to remain in [“Department 2”] if he cannot be guaranteed reemployment until the age of 57, rather than 55.” - The SDD Chief proposed either (a) informing Mr. “O” that no reemployment guarantee could be provided due to performance, or (b) providing a reemployment guarantee leaving unspecified the department of return. - The Deputy Managing Director rejected both options and instructed: “We should not give an unconditional guarantee. We should say that if Mr. [“O”] takes the ED Office position, he can return to the staff but must retire at the age of 55.” - The SDD Chief endorsed that approach and subsequently issued the May 4, 1995 letter to Mr. “O”. - Applicant’s account: - Between April 28 and 30, 1995 Applicant called the Deputy Managing Director after being told “no department is ready to give me the guarantee of re-entry.” - According to Applicant, the Deputy Managing Director told him “only the Fund can guarantee you” and that the Fund would guarantee re-entry “provided you come back before you reach the age of 55. After which the Fund . . . will be in no obligation to accept.” - Applicant asserts the Deputy Managing Director did not discuss the type of employment (fixed or regular) and that “It was understood that I come back . . . as a regular.” - Applicant’s March 10, 2003 letter to the Managing Director similarly noted the Deputy Managing Director “expressed full support for my transfer to the Executive Board in order to broaden my experience.” - Tribunal observations on the May 4, 1995 letter: - The letter opens: “As agreed in your recent conversation with [a Deputy Managing Director] . . .” but the letter itself bears no Applicant signature and is signed only by the administration of the Fund. - The record shows no contemporaneous objection by Mr. “O” to the Fund’s statement that the arrangements were agreed. - The Tribunal notes Applicant’s interpretation — that the letter limited the guarantee to terminate at the end of February 2000 — is consistent with: (a) the Fund’s assertion that normally staff receive an unconditional guarantee of reemployment when resigning for Executive Board service; and (b) GAO No. 16, Section 6.04.2 requiring that the period of understanding be determined by the Fund and recorded in writing before resignation. - Nonetheless, the Tribunal recognizes room for doubt because the letter does not on its face evidence a bilateral agreement and Applicant disputes later communication of the internal exchanges. ### Effect of Applicant’s subsequent signed appointment letters and precedent on acceptance of terms - The Tribunal considered whether Applicant’s signature on appointment letters dated July 14, 1999 and subsequent dates barred him from challenging the limited terms of those appointments. - Citing IMFAT precedent (Mr. M. D’Aoust, IMFAT Judgment No. 1996-1), the Tribunal recalled: - The presumption that terms in a letter of appointment accepted by a staff member weigh against later challenge, but this is a presumption only. - Inequality of bargaining position and the Fund’s possession of relevant information may leave room for staff members to challenge terms based on misrepresentation or irregularity in the appointment process. - Acceptance of initial terms does not necessarily bar challenge where there was no true meeting of the minds regarding the nature of the job at acceptance. - On the facts before it, the Tribunal concluded that Mr. “O” did acquiesce in the Fund’s position affording him a limited, rather than indefinite, reentry. ### Legal question: permissibility under GAO No. 16, Section 6 of the 1995 arrangements - Applicant’s contention: - Conditioning his return to service on taking up a limited-term appointment was inconsistent with GAO No. 16, Section 6, which Applicant reads as contemplating resumption of a regular appointment of indefinite duration upon reappointment. - Respondent’s contention: - The Fund had a “unilateral prerogative” to offer limited-term arrangements; it is not required to offer any guarantee (conditional or unconditional) and such offers are within its discretion. *International Monetary Fund Administrative Tribunal — Judgment No. 2006-1 (Mr. “O”) — excerpted findings and legal analysis regarding separation from service, the May 4, 1995 reemployment letter, GAO No. 16 (Section 6), and the parties’ factual accounts.* ### 87. Applicant furthermore contends that the Fund’s devising of a “hybrid” ### imfat-5 - 87. Applicant furthermore contends that the Fund’s devising of a “hybrid” appointment for Mr. “O”, i.e. of limited duration and with no process or benefits attached to separation but retaining such employment benefits of regular staff appointments as participation in the Staff Retirement Plan, runs counter to GAO No. 3, Rev. 5 (1989). ### Background and legal context - GAO No. 3, Rev. 5 (1989) provided for two kinds of staff appointments, “fixed term” and “regular”: “Regular appointments shall be appointments for an indefinite period. Persons holding such appointments shall be designated as regular staff members.” (Section 3.01.) - GAO No. 16 “sets forth the policies and administrative procedures governing the separation of staff members from the Fund,” and provides that separation may take place in one of the following ways: (a) voluntary resignation, including early retirement (Section 5); (b) mandatory resignation to take up a position with the Executive Board of the Fund, with the World Bank, and acceptance of a position of a political nature (Section 6); (c) abandonment of position (Section 7); (d) expiration of fixed-term appointment (Section 8); (e) expiration of probationary period (Section 9); (f) mandatory and extended retirement (Section 10); (g) separation for medical reasons (Section 11); (h) death of a staff member (Section 12); (i) separation upon abolition of the staff member’s position, change in job requirements, or when a reduction in strength is required (Section 13); (j) separation for unsatisfactory performance (Section 14); and (k) separation for misconduct (Section 15). (Section 3.01.) - For separation for unsatisfactory performance, GAO No. 16 requires a probationary period of at least six months (Section 14.02) and entitles the staff member to a 30-day notice period (Section 14.04). At the discretion of the Director of Human Resources, the notice period may be extended if a staff member appeals separation under Section 13, Section 14, or Section 15 (Section 17.01). ### Tribunal’s central legal question and holding - Central question: When a staff member resigns to serve as an Advisor to an Executive Director, is it within the Fund’s discretion to conclude an arrangement for the staff member’s return that is of limited duration and to create an appointment of fixed duration but carrying such benefits of staff employment as home leave and participation in the Staff Retirement Plan? - Tribunal’s answer: Affirmative — it was within the discretion of the Fund to conclude such arrangements, provided the staff member agreed to or acquiesced in those variations from GAO No. 16. ### Factual findings concerning the 1995 arrangements with Mr. “O” - The Fund decided in 1995 that while it would approve Applicant’s resignation to serve as Advisor to an Executive Director, it would not agree to reappoint Applicant as a regular staff member because Applicant’s work performance had been evaluated as being in the lowest percentiles of staff performance. - The Fund was sensitive to the desirability of Applicant’s attaining a pensionable extent of service and supported Applicant’s search for a position as a Resident Representative. - The Fund’s intent in making the 1995 arrangements is evidenced by a memorandum to the Deputy Managing Director of April 25, 1995, and handwritten comments thereon by the Deputy Managing Director. - Applicant’s conduct and writings indicate awareness of the Fund’s intended terms: - In 1999 the Fund sent a letter expressly relying upon its interpretation of the 1995 arrangements; Applicant took no exception at that time. - In a letter of November 24, 2002 to the Managing Director Applicant stated: “When I was appointed an ‘Advisor to Executive Director’ in 1995, the Administration Department sent me a letter transforming my regular employment status into a ‘Fixed term’ appointment without my consent.” - In a communication of March 10, 2003 to the Managing Director Applicant asserted: “When I returned to staff in July 1999, I was surprised to learn from HRD that I had become a fixed-term employee and was expected to leave the Fund by end February 2000.” - Applicant served, with the Fund’s support, an appointment as Resident Representative that lasted for 3 years. - Applicant did not protest the 1995 arrangements until late in the period during which he had benefited from those arrangements. ### Tribunal’s assessment of assent and procedural handling - The Tribunal is satisfied, on balance, that Applicant understood, accepted, and effectively agreed to the terms laid down by the Fund in 1995 through his acceptance of benefits and failure to question the arrangements until after exhausting those benefits. - The Tribunal found the Fund’s coincident descriptions of Applicant’s status as both “regular” appointee and “fixed-term” appointee to be confused and judged that the Fund would have been better to have more clearly established Applicant’s assent at the time the arrangements were made. - Despite administrative criticism for lack of clarity, the Tribunal concluded that the Fund’s approach to ensuring Applicant’s pension and support for his Resident Representative appointment was proper and not actionable discrimination. ### Claims of discrimination and Tribunal’s conclusion - Applicant alleged impermissible discrimination on the basis of race, citing lack of career progression (not advancing from Grade 13 in twenty years), incidents “that merit investigation,” and disparate treatment in reemployment terms and ultimate separation. - Respondent maintained that Applicant’s lack of promotion and career impediments were controverted by his performance record. - Tribunal’s finding: Applicant has not shown that his Fund career or its termination was affected by racial discrimination; the evidence advanced by Applicant was insufficient to support the claim. The fact that Applicant was not promoted over twenty years is not, by itself, probative of discrimination. ### Outcome and decision - Decision: The Application of Mr. “O” is denied. - The Administrative Tribunal’s judgment was adopted with signatures dated February 15, 2006. - Composition of the Tribunal in the judgment: Stephen M. Schwebel, President; Nisuke Ando, Associate Judge; Michel Gentot, Associate Judge. Registrar: Celia Goldman. *Administrative Tribunal of the International Monetary Fund, Judgment No. 2006-1 (Mr. “O”), February 15, 2006.* ### 7. Any and all communications regarding Applicant among [“Depart- ### 7. Any and all communications regarding Applicant among [“Department 1”] personnel including but not limited to specified persons. ### Rule XVII and Tribunal decision on document production - Rule XVII (Production of Documents) provisions as quoted govern requests for document production, including: - The Applicant may request production before closure of pleadings and the Fund shall be given an opportunity to present views. (Rule XVII, para. 1.) - The Tribunal may reject requests if documents are clearly irrelevant, unduly burdensome, or would infringe privacy; Tribunal may examine documents in camera. (Rule XVII, para. 2.) - The Tribunal may, subject to Article X, Section 1 of the Statute, order production of documents in the Fund’s possession and request information it deems useful. (Rule XVII, para. 3.) - When the Tribunal is not in session, the President shall exercise the powers set forth in the Rule. (Rule XVII, para. 4.) - The Administrative Tribunal, meeting in session, decided on December 7, 2005 to deny the Applicant’s document requests on the grounds summarized below. - Requests 1, 2, 4, 5, 6, and 7: denied because the Fund responded that all responsive documents had been provided to Applicant during the Grievance proceedings, and Applicant proffered no evidence to suggest additional responsive documents were in the Fund’s possession. (Cited: Ms. “W”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2005-2 (November 17, 2005), para. 14.) - Request 3 (documents relating to managerial responsibilities for professional development of subordinates): - Respondent partially satisfied the request but objected to producing guidance materials for managers relating specifically to performance issues of regular staff members. - The Fund contended such documents are not relevant to assessing legality of a decision concerning conversion of a fixed-term staff member. - The Tribunal sustained the Fund’s objection that such documents are not relevant to the issues of the case of Ms. “T”. ### Factual background — employment status and appointment terms - Applicant first employed beginning in July 1997 as a contractual employee to serve as a Staff Assistant in the Secretarial Support Group (SSG). - Applicant was appointed as a fixed-term staff member at the end of September 1999, governed by GAO No. 3, Rev. 6 (May 1, 1989) and the Guidelines for Fixed-Term Appointments (August 1995). - GAO No. 3, Rev. 6 defined: - 3.01 Regular Appointments: appointments for an indefinite period; designated as regular staff members. - 3.02 Fixed-term Appointments: appointments for a specified period of time; designated as fixed-term staff members. - GAO No. 3, Rev. 7 (May 1, 2003) provisions cited for context on later rules governing fixed-term and open-ended appointments (text quoted in source); the present Application is governed by GAO No. 3, Rev. 6 and the Guidelines for Fixed-Term Appointments (August 1995). ### Appointment details, probation, and confirmation - Fixed-term appointment letter explained: - Appointment for a two-year period commencing on October 5, 1999 and probationary for the first six months. - Applicant would be subject to the Guidelines for Fixed-Term Appointments (1995). - Initial assignment: Staff Assistant in “Department 1”, initially in “Division i” as one of two Assistants. - Feedback and transfer timeline: - Administrative Officer alerted Division Chief that Administrative Assistant had given Applicant a “not very good evaluation of the past three months.” - In February 2000 Applicant was transferred to “Division ii.” - Memorandum of January 12, 2001 recorded feedback from “Division i” Chief noting shortcomings in technological skills and work methods; Applicant responded that the Administrative Assistant was “too busy and uncooperative.” - Probation conclusion and confirmation: - Administrative Officer queried “Division ii” Chief; email of April 4, 2000: “[The Administrative Assistant of “Division ii”] confirmed that [Ms. “T”] was a slow worker, and a slow learner. However, her attitude is positive, she is trying, and she is making progress. [The Administrative Assistant of “Division ii”] is hopeful that she will pull through. Based on this, perhaps we should go ahead and confirm, and see how it works out. I find her helpful and good in the division.” - On June 23, 2000, Administrative Officer reported to Human Resources Department (HRD) that “Department 1” was “. . . pleased with Ms. [“T”]’s performance and would like her appointment to be confirmed.” - Applicant was informed by HRD that she had successfully completed the probationary period. ### Anniversary Annual Performance Report (Anniversary APR) and performance plan - Anniversary APR covered October 7, 1999–October 7, 2000 and included comments from both Division Chiefs. - On “Division i” assignment: “. . . despite her previous Fund experience, she appeared to lack the knowledge of standard Fund procedures and technical know-how usually expected of assistants.” - On “Division ii” work: “. . . she did make an effort to improve her performance . . . . [n]evertheless, there remained scope for improving the speed and quality of her work.” - Performance Plan objectives (as recorded in Anniversary APR): - “improve technical skills” through training and division work. - “show greater initiative” by taking full responsibility during the Administrative Assistant’s absence in January/February. - Attached listing of eleven areas for development, including technological and work management objectives such as: - “[n]eed to improve technological skills—particularly more complex documents, boxes, Excel tables, and charts,” - “[a]ttend to routine work without delay and without having to be reminded (e.g., filing, mail, BRS, mission leave schedule, weekly list).” - Anniversary APR discussion of January 19, 2001: initial “Division ii” Chief “. . . reiterated that the improvement in Ms. [“T”]’s performance over the last year indicated potential to reach the level necessary for satisfactory performance, but this needed to be clearly demonstrated in the coming months before a decision on conversion of her contract could be reached.” - Applicant’s reaction: on March 9, 2001 she recorded above her signature that she was “. . . shocked that my performance had been [rated] at a low level. It was the first time, since February 2000, that anyone told me that I was not performing at the level of an assistant of my grade.” - Applicant raised concerns alleging inadequate feedback and discrimination to the Senior Personnel Manager (SPM) on January 31, 2001; the SPM offered to clarify areas for improvement and how they would be communicated. ### Extension, mentoring, transfer, and subsequent evaluations - Department decision to extend fixed-term appointment by six months to provide Applicant an opportunity to demonstrate requisite standards: - Department Head’s March 2, 2000 entry: department “has been agreed to extend her fixed-term appointment by six months, in order to provide her with an opportunity to demonstrate that she meets the requisite standards to become a regular staff member in the department. The outcome will, however, depend on her performance and her efforts to address the areas identified for improvement.” - Expiration of Fixed-Term Appointment form signed March 9, 2001 formalized extension through April 3, 2002 and referenced: - Attached first anniversary APR and memo enumerating areas for development. - Monthly meetings by division chief, admin assistant and AO to provide feedback. - Ms. . . . of SDD [Staff Development Division of HRD] will be her mentor during the next six months and will be kept informed of her progress. - “A decision will be made at the end of September whether to convert Ms. [“T”] or let her term expire.” - March 2001 transfer to “Division iii” intended to provide a “supportive environment.” - Deputy Chief of “Division iii” reported favorable mission performance in November 2000: “Ms. [“T”]’s overall performance on the mission was very good . . . . The mission was very busy . . . . She organized her work well, pushing others also to meet deadlines, and everything went smoothly . . . . Minutes, tables, matrices, and the concluding statement were all typed/revised/distributed well. I found her original drafts of minutes to be reasonably accurate, and she was at pains to check with me, or other members of the team, when there was any problem . . . .” (Memorandum of February 8, 2001) - On arrival in “Division iii,” Administrative Assistant provided a detailed listing of duties and responsibilities (Memorandum of March 8, 2001). - Regular APR covering October–December 2000 prepared and signed: - APR attached Deputy Division Chief’s memorandum and noted mission performance; signed May 2, 2001 by “Division ii” Chief and June 4, 2001 by “Division iii” Chief. - Performance rated “3” on a rating scale of 1–4; signed by the Department Head on May 7, 2001. - “Division iii” meetings and development notes: - April 24, 2001 meeting: Division Chief recorded strengths and areas for further development, including: - “Improve familiarity with Fund procedures (e.g., how to handle Board documents).” - “Greater attention to detail (e.g., when proofreading documents and inputting data into tables).” - “Frequently touch base with colleagues to check that there is a clear understanding of what tasks are expected and when.” - Mentor from Staff Development Division met with Applicant and provided advice on communication skills; subsequent contact recorded for May and July 2001. - June 22, 2001 meeting: Division Chief advised further areas for improvement, including prioritizing tasks according to urgency and communicating with colleagues to ensure clear workflow prioritization. *Source: IMF Administrative Tribunal Reports, Vol. V — Judgment No. 2006-2 (Ms. "T").* ### 24. Thereafter, on September 12, 2001, as the date approached for a deci- ### JUDGMENT NO. 2006-2 (MS. "T") ### Background and factual chronology - On September 12, 2001, six months in advance of the revised (April 3, 2002) termination date of Applicant’s fixed-term, the Deputy Division Chief prepared an overall assessment of Ms. “T”’s performance in “Division iii,” stating that performance had been “below average for her grade” since March and that he “did not have complete confidence that critical matters in her charge . . . would be done without very close and intense supervision.” - The Deputy Division Chief’s assessment noted efforts to improve, limited familiarity with correct Fund procedures, and concluded performance was “not low enough to warrant formal action for a regular employee but inconsistent with sufficient confidence to either employ for the first time or convert from a contractual [i.e. fixed-term] status.” - On September 20, 2001, the Division Chief, Deputy Division Chief and Administrative Assistant met with Ms. “T” to review her preceding six months; a Memorandum for Files emphasized remaining “important areas” for development, including correction of typographical errors and knowledge of Fund procedures. - By Memorandum for Files dated September 27, 2001, Applicant responded to the alleged deficiencies. - A senior-management meeting considered the Division Chief’s views on conversion; on October 5, 2001, the SPM notified Ms. “T” of the decision not to convert her appointment. - The Expiration of Fixed-Term Appointment form of October 4, 2001, recorded: mixed performance, concerns raised in the February 2001 APR exercise about lack of knowledge of standard Fund procedures, technical know-how, and pace of work; some improvement during the subsequent six-month assignment; ongoing issues with attention to detail, pace of work, and managing major projects; and the conclusion that “her overall aptitude for work in an operational department remains in doubt.” - Applicant sought administrative review pursuant to GAO No. 31; Applicant’s Grievance was filed on July 16, 2002. - The Grievance Committee issued its Recommendation and Report on December 19, 2003, recommending denial of the Grievance on the ground that Applicant had not shown the non-conversion decision was arbitrary, capricious, discriminatory or procedurally defective in a manner that substantially affected the outcome. Fund management accepted the recommendation on January 13, 2004. - Applicant filed her Application with the Administrative Tribunal on April 13, 2004. ### Parties’ principal contentions - Applicant alleged: - The decision not to convert failed to consider all evidence and was arbitrary and capricious. - The non-conversion decision was affected by procedural irregularities. - The Fund created an expectation of conversion and “mismanaged” Applicant’s career. - The decision was discriminatory on the basis of race and nationality. - Relief sought: (a) reinstatement with a fair opportunity to demonstrate suitability for conversion to regular staff; (b) reasonable monetary damages; and (c) legal costs. - Respondent (the Fund) argued: - The non-conversion decision was a reasonable exercise of managerial discretion consistent with the Guidelines for Fixed-Term Appointments. - The decision was based on a proper assessment of Applicant’s performance and potential and did not omit material facts. - Applicant received regular feedback, monitoring, and ample opportunities to improve but did not attain the level required for conversion. - Applicant has not shown procedural irregularities, creation of an expectation of conversion, or mismanagement of career. - Applicant has not shown discrimination on the basis of race or nationality. ### Legal framework for conversion of fixed-term appointments - The Fund’s policy is to hire virtually all new staff on a fixed-term basis preliminary to indefinite appointments; for appointments commencing prior to December 2002, the Guidelines for Fixed-Term Appointments (August 1995) govern. - The 1995 Guidelines state their purpose is to ensure fixed-term staff understand their status and have a realistic view of prospects for conversion; they inform appointees that “[t]he Fund’s legal obligation does not go beyond the initial term . . .” and set out three criteria for conversion: - (a) performance during the fixed-term; - (b) potential for a career with the Fund; and - (c) the staffing needs of the organization. - The Guidelines assign obligations to both fixed-term appointees and supervisors: supervisors should provide suitable assignments, clear expectations, appropriate guidance, and timely feedback; the staff member must seek assistance when necessary. - Checkpoints for performance assessment are provided at six, twelve and eighteen months after appointment; for Grade A1-A8 staff the first six months normally constitute a formal probationary period. At 12 months “prospects for conversion should be discussed . . . , and this discussion should be reflected in the write-up.” - The formal decision on conversion is to be taken at 18 months. As an exception, a department may request a one-time extension of the appointment for up to one year if it lacks adequate information to base a final decision; such an extension should not be taken by the staff member as an indication regarding prospects for eventual conversion. - A revised fixed-term monitoring process became effective on December 2, 2002 (and was further updated as of January 1, 2005) for staff appointed on or after that date; the criteria for conversion remain unchanged and are reflected in GAO No. 3, Rev. 7 (May 1, 2003). ### Tribunal’s standard of review and jurisprudence - The Tribunal applies the Commentary on the Statute: discretionary managerial 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 decision whether to convert a fixed-term appointee is essentially a “performance-based decision.” Prior Tribunal decisions (e.g., IMFAT Judgment No. 1997-1 (August 22, 1997), Ms. “C”) sustained non-conversion decisions where evidence showed performance deficiencies, while recognizing that procedural irregularities could give rise to compensable claims. - The Tribunal defers to management’s assessment of suitability for indefinite appointment but requires that discretion be constrained by principles of fairness: adequate opportunity to demonstrate satisfactory performance, adequate supervision and guidance, periodic evaluation, adequate warning of deficiencies, and a reasonable opportunity to remedy them. ### Key findings and considerations - Conversion decisions must rest on the three Guidelines criteria: performance during the fixed-term, potential for a career with the Fund, and the Fund’s staffing needs. - Supervisors bear responsibility to provide clear expectations, guidance, timely feedback, and suitable assignments; fixed-term staff must seek assistance when needed. - The monitoring framework includes checkpoints at six, twelve and eighteen months, with the 12-month write-up discussing prospects for conversion and the 18-month point for the formal conversion decision. - A department may request a one-time extension of up to one year where inadequate information exists to make a final decision; such an extension is not in itself an indication of likely conversion. - The Tribunal will not substitute its judgment for management on suitability for permanent employment unless management’s decision is arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or implemented in violation of fair and reasonable procedures. *IMF Administrative Tribunal Reports, Judgment No. 2006-2 (Ms. "T")* ### 39. Accordingly, the following questions arise. Was the non-conversion of ### JUDGMENT NO. 2006-2 (MS. "T") ### Background - Applicant contested the Fund’s decision not to convert her two-year fixed-term appointment to an appointment of indefinite duration. - Key dates and periods preserved from the record: - Anniversary APR discussions: January 19, 2001. - Expiration of Fixed-Term Appointment form: October 4, 2001. - Anniversary APR covered the period October 7, 1999–October 7, 2000. - Applicant’s Anniversary APR was completed some 3–4 months after the 12-month mark. - Applicant was afforded a six-month extension of her appointment. ### Expectation of conversion - Applicant alleged the Fund created an “expectation” of conversion by providing positive feedback and mission assignments. - Tribunal finding: - No merit to the contention of an “expectation” of conversion. - Applicant’s performance was perceived by supervisors as “mixed.” - Periodic appraisals demonstrated—or should have demonstrated—to Ms. “T” that the Fund retained doubts about conversion prospects. - The Anniversary APR extension stated the extension was “. . . in order to provide her with an opportunity to demonstrate that she meets the requisite standards to become a regular staff member in the department. The outcome will, however, depend on her performance and her efforts to address the areas identified for improvement.” (Anniversary APR.) ### Supervision, feedback, transfer and remedial measures - Guidelines cited: supervisors should provide “suitable assignments, clear expectations, appropriate guidance, and timely feedback.” - Record of supervisory action: - The SPM undertook efforts to clarify communications regarding performance shortcomings, including a follow-up meeting, extension of appointment, and transfer to “Division iii.” - Examples of ongoing feedback: being told to follow through with e-mail requests, attend to routine tasks such as the mail in a timely manner, or to put boxes on charts in Word documents. (Memorandum of February 16, 2001.) - On transfer to “Division iii” the Administrative Assistant supplied a detailed listing of duties and allocation of responsibilities between assistants in the Division. - A mentor was assigned from the Staff Development Division of the Human Resources Department (extent of Applicant’s use of mentor assistance unclear). - Tribunal comparison: - Distinguished from Ms. “C” case where lack of steps to ensure awareness of need to improve interpersonal skills gave rise to compensable claim; by contrast, Ms. “T” was advised on a series of occasions of shortcomings and received a detailed listing of “areas for development,” including “technological” and “work management” skills. ### Procedural irregularities and timing of appraisals - Applicant argued the Anniversary APR, intended to appraise performance at 12 months, was completed 3–4 months late, constituting procedural irregularity. - Tribunal analysis and finding: - Dispute exists as to Applicant’s role in delay. - Any deficiency was overcome by the six-month extension of Applicant’s appointment. - Citing Salle, para. 46: belated appraisal immaterial where applicant suffered no injury and received a six-month extension; “Far from losing time because of the belated [performance appraisal], the Applicant had more opportunity to improve his performance and to demonstrate his abilities.” - Conclusion: no irregularity of procedure and no “career mismanagement” with respect to the non-conversion. ### Evaluation of evidence and fairness of weighing - Tribunal reaffirmed importance of performance evaluation systems to avoid arbitrariness and discrimination (citing Ms. “C”, para. 36). - Obligation on respondent: “. . . to take into account all relevant and significant facts that existed for that period of review.” Romain (No. 2) v. IBRD, WBAT Decision No. 164 (1997), para. 19. - Record indicates: - Anniversary APR was signed by and included comments from both Division Chiefs under whom Applicant served. - Both Division Chiefs and the Administrative Officer participated in Anniversary APR discussions of January 19, 2001. - Regular APR covering October–December 2000 referred to positive mission performance and attached the Deputy Division Chief’s favorable appraisal. - Tribunal finding: Respondent did take account of relevant evidence and weighed it fairly; Applicant’s contention that evidence was not fairly considered has no merit. ### Discrimination claims (race and nationality) - Applicant alleged discrimination on the basis of race and nationality and later asserted a “discriminatory impact” by reducing representation of her group in “Department 1.” - Tribunal findings: - Applicant had voiced a perception of discrimination; SPM investigated and found no basis. - Applicant later clarified she “. . . had not accused anyone of discrimination but rather that the process followed for her APR led her to believe that she was being discriminated against.” (Memorandum for Files of February 16, 2001.) - An incident involving allegedly offensive remarks by the Deputy Chief of “Division iii” was credibly refuted by that Deputy Division Chief (Memorandum for Files of June 9, 2002 and Grievance Committee testimony). - Statistical argument of underrepresentation held “far from probative of discrimination.” (Citing Ms. “Z”, IMFAT Judgment No. 2005-4, para. 74.) - Conclusion: Applicant has not demonstrated discrimination. ### Conclusions and decision - Summarized Tribunal conclusions: - Applicant repeatedly was warned of shortcomings in performance; no “expectation” of conversion was created. - Warnings and feedback were consistent with Guidelines for Fixed-Term Appointments. - Appointment was extended and Applicant was transferred to a Division intended to provide a more favorable development environment; remedial steps (transfer, extension, mentor) were taken. - Transfers to “Division ii” and later to “Division iii” together with a six-month extension remedied any possible deficiency in opportunities to demonstrate skills. - Delay in Anniversary APR did not constitute a compensable claim given the extended period to demonstrate fitness. - Management completed Annual Performance Reviews collaboratively, taking into account views of former supervisors when Applicant transferred. - Ultimately, after the six-month extension, Applicant’s performance “fell short of a ‘clearly positive’ assessment, as required for conversion under the Fund’s Guidelines and supported by international administrative jurisprudence.” - The Tribunal will not substitute its judgment when managers reach a considered decision in the absence of improper motive. - Decision: - The Administrative Tribunal of the International Monetary Fund unanimously decides that: - The Application of Ms. “T” is denied. - Final procedural and signature details: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar - Washington, D.C., June 7, 2006 *Administrative Tribunal of the International Monetary Fund, Judgment No. 2006-2 (Ms. "T"), June 7, 2006.* ### 5. The Tribunal decided that oral proceedings, which neither party had ### 5. The Tribunal decided that oral proceedings, which neither party had requested, would not be held as they were not necessary for the disposition of the case. ### Procedural rulings on oral proceedings and evidence - The Tribunal decided not to hold oral proceedings because they were not necessary for the disposition of the case. - The Tribunal considered a transcript of oral hearings before the Grievance Committee at which Applicant and other witnesses testified. - The Tribunal held that it is “. . . authorized to weigh the record generated by the Grievance Committee as an element of the evidence before it.” (Mr. M. D’Aoust, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1996-1 (April 2, 1996), para. 17.) - Rule XIII, para. 1 of the Rules of Procedure provides that oral proceedings shall be held “. . . if the Tribunal decides that such proceedings are necessary for the disposition of the case.” - Article XII of the Tribunal’s Statute provides that the Tribunal shall “. . . decide in each case whether oral proceedings are warranted.” ### Requests for production of documents (Applicant Ms. “U”) - Applicant’s document requests (numbered 1–6) sought: - 1. Any and all documents relating to performance standards for Fund Staff Assistants from 1999 until the date of Applicant’s separation; - 2. Any and all documents evidencing any actions by Respondent to share with Applicant any of the documents produced in response to point 1 above; - 3. Any and all documents relating to managerial responsibilities for the professional development of subordinates including but not limited to training materials for managers or supervisors, guidelines and manuals, the Fund’s "Performance Management Handbook"; and documents relating to the monitoring of fixed-term appointed staff; - 4. Any and all documents relating to or evidencing any action Respondent may have taken as it relates to developing Applicant’s skills for a career with the Fund; - 5. Any and all documents relating to the diversity (e.g., race, nationality, gender) of [“Department 1”] from 1999 until the date of Applicant’s separation; and - 6. Any and all communications regarding Applicant among [“Department 1”] personnel including but not limited to specified persons. - Procedural rule applied: Rule XVII (Production of Documents) provides procedures and grounds for rejecting requests (irrelevance, undue burden, privacy), allows in camera examination, and permits the Tribunal to order production of documents in the Fund’s possession. - Tribunal decision (meeting in session on December 7, 2005): deny each of the requests on the following grounds: - Requests 1, 2, 4, 5 and 6 were denied because the Fund responded that all responsive documents were provided to Applicant during the Grievance proceedings, and Applicant proffered no evidence that the Fund possessed additional responsive documents. Denial based on Applicant not having shown that she had been denied access to documents by the Fund (Rule XVII, para. 1). (See Ms. “W”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2005-2 (November 17, 2005), para. 14.) - Request 3 was partially satisfied by Respondent; the Fund objected insofar as the request sought guidance materials for managers relating specifically to performance issues of regular staff members. The Tribunal sustained the Fund’s objection that such documents are not relevant to assessing the legality of a decision concerning the conversion of a fixed-term staff member. ### Factual background: appointment, performance assessments, and extensions - Employment history and appointment terms: - Applicant first employed beginning in February 1998 as a contractual employee to serve as a Staff Assistant in the Secretarial Support Group (SSG). - Applicant appointed as a fixed-term staff member in February 2000 in accordance with GAO No. 3, Rev. 6 (May 1, 1989). - Applicant’s letter of fixed-term appointment explained that the appointment was for a two-year period commencing on February 15, 2000 and would be probationary for the first six months. The letter advised Applicant she would be subject to the Guidelines for Fixed-Term Appointments (1995). - Probation and early assessments: - At the conclusion of the six-month probationary period the Administrative Officer reported that Applicant had successfully completed probation with satisfactory performance and stated: “She is conscientious in her approach to her work and has already acquired a good basic knowledge of Fund practices and procedures. Ms. [“U”] has the potential to become a good staff assistant.” - Memorandum to Files of the Administrative Officer noted areas for improvement: not to fear asking questions; seek advice in prioritizing work at peak times; check written work for accuracy; ask the senior assistant to check work before submitting to supervisor. - Assignments and Annual Performance Reports (APRs): - After approximately nine months as a departmental floater, on November 1, 2000 Applicant was assigned to “Division i” of “Department 1.” - Applicant’s APR for calendar year 2000, signed by the Chief of “Division i,” rated her performance “2” on a rating scale of 1–4. The APR noted “Overall, her performance was good with some areas for improvement . . . she has the potential to become a strong staff assistant particularly if she continues to make efforts to ensure the meticulousness and accuracy of her contributions.” - Performance Plan in 2000 APR: “[c]ontinue to gain greater familiarity with Fund procedures and data management” and “[c]ontinue to improve the meticulousness of the contributions” by taking an editing skills course and other courses. - Mid-term concerns and transfers: - On August 2, 2001 Applicant’s memorandum to the Office Manager noted reduced exposure to handwritten memos and limited practice in working on documents. - The Senior Personnel Manager (SPM) prepared an Expiration of Fixed-Term Appointment form dated August 15, 2001 and signed September 10, 2001 reflecting a decision to extend the appointment for 6 months beyond its February 14, 2002 scheduled expiration rather than convert to regular staff or let it expire. - The Expiration of Fixed-Term Appointment form recorded: Applicant “has the potential to become a good staff assistant. She is reliable, cooperative and has a flexible attitude. A particular weakness is a continuing lack of accuracy in her typewritten work from heavily edited drafts—a core competency for staff assistants.” The form explained transfer to another division to provide daily opportunities to hone editing and proofing skills; Applicant was applying for Editing Skills I course and studying at the SDC; the OM would monitor improvement monthly. - On September 10, 2001 Applicant was transferred to “Division ii” and placed under close supervision of the Senior Administrative Assistant. Notes to Files of November 2001 reported progress observed by the Senior Administrative Assistant and an economist. - Extensions and development plan: - In February 2002 the decision was made to seek an additional 6-month extension (beyond the revised August 14, 2002 termination date). In a memorandum of March 13, 2002 the SPM explained: “Although she has not been learning the skills quickly enough to justify a conversion now, Ms. [“U”] is keen and anxious to improve her skills. Consequently, [“Department 1”] in coordination with SDD designed a development plan, because both the Department and SDD considers she has potential. Implementation of the development plan, the assistance she received from her colleagues in the Division together with her efforts, has resulted in considerable improvement of Ms. [“U”]’s skills and performance. Also, very recently, because of a departmental reorganization, she is now in Division [“iii”] where she can continue to be closely supervised and coached. However, six months is not an adequate period to evaluate and judge her improvement.” - The request for extension through February 14, 2003 was approved and monitoring continued. - 2001 APR and further monitoring: - Applicant’s APR for calendar year 2001 rated her performance “3” and stated: “In working closely with the administrative assistant in the division, she is becoming more familiar with the Fund’s working practices and software. . . . Ms. [“U”] has not yet performed strongly enough to justify conversion to regular staff at this time and will need to show significant improvement at the end of the extension period.” - Development Objectives in 2001 APR: “[g]ain speed and accuracy in incorporating comments on drafts[,] [p]ay particular attention to proofreading [and] [g]ain increased familiarity with the preparation of Fund documents,” by continuing to work closely with the Senior Administrative Assistant and completing specified training courses. - Applicant’s comment on the APR: she “. . . appreciate[d] the willingness of [her] manager to provide regular feedback.” - On June 18, 2002 a Human Resources Officer (HRO) from the Staff Development Division held an additional performance discussion to discuss the APR and ascertain Applicant’s understanding of weaknesses and improvement steps. In a Memorandum for Files of July 3, 2002 the HRO concluded that Applicant showed “strong effort in improving her performance with visible results,” could cope with a heavy workload and successfully completed tasks on time, and that monitoring by supervisors would continue. The HRO informed Applicant of the possibility that her fixed-term status would not be converted to regular if performance continued to suffer. *IMF Administrative Tribunal, Judgment No. 2006-3 (Ms. "U").* ### 22. On June 11, 2002, the Assistant to the Senior Personnel Manager ### 22. On June 11, 2002, the Assistant to the Senior Personnel Manager ### Performance concerns, training plan, and feedback (June–July 2002) - On June 11, 2002, the Assistant to the Senior Personnel Manager (ASPM) communicated to Applicant two major issues to develop performance: 1. Improve the speed of your work together with accuracy, and 2. Improve your communication with your supervisors and colleagues and feel comfortable and willing to ask any questions if unsure of your assignment. - The ASPM stated: “As you know we have worked out a training program together with you and the SDD training expert. You should complete attending the courses by the end of July and I would like to hear your comments about the courses and how effective will they be in your performance development.” - The ASPM requested Applicant’s self-evaluation after one month from the APR results, asking for: - improvements and areas to work on; - assignments and assessment of accomplishment; and - suggestions on how management could assist further. - On the advice of HRD, the Senior Administrative Assistant maintained a daily log from June 3–July 12, 2002, documenting coaching efforts. In a cover memorandum of July 12, 2002 addressed to the ASPM, the Senior Administrative Assistant observed: “In my view, she is making progress. Her work requires less intervention, and she now seems to have a clearer understanding of what is expected of her and how to handle her various tasks.” ### Subsequent assessment and outstanding concerns (July–August 2002) - Meetings to assess Applicant’s July 2002 performance were recorded on August 12, 2002, involving the Division Chief, the Senior Administrative Assistant, and Ms. “U”. - On August 27, 2002, the Division Chief completed a Quarterly Performance Review noting: “communications skills have improved considerably,” but continuing concerns included: - “the speed with which she completes her assignments often falls short of the Fund’s standards.” - need to “pay greater attention to details and accuracy in performing even relatively small tasks, such as photocopying and preparing leave slips.” - failure to “on a sufficiently regular basis, fully incorporate comments received from economists into revised texts and proofread documents before they are sent from the division.” ### Decision not to convert and rationale (late August–September 6, 2002) - In late August, the SPM convened a meeting of the Division Chief, the alternate SPM, the ASPM, the OM, and mission chief to evaluate conversion prospects. The ASPM circulated Applicant’s APRs and related documentation to participants. - The SPM testified that there was unanimity on the question of non-conversion. The ASPM described the decision as “a collective decision.” - On September 6, 2002, the SPM notified Applicant of the decision not to convert her appointment. The Expiration of Fixed-Term Appointment form of the same date recorded: - “While Ms. [‘U’]’s performance has shown improvement in the last 6 months, it continues to be just below the level expected of a staff assistant at Grade A5.” - Despite “positive attitude and willingness to develop and improve, training received and close supervision according to her performance plan, the quality and timeliness of her work falls short of standards.” - Specific weaknesses: not attentive to details, “the work continues to have many inaccuracies,” not adequately familiar with Fund style for correspondence and drafts, “still needs close supervision,” and “cannot substitute adequately for higher level assistants.” - On potential longer term: “Given the weaknesses referred to above, we do not believe that Ms. [‘U’] has long term career prospects in the Fund. Despite all the efforts of both parties, the improvement of her performance has not been sufficient to meet the Fund standards for an A5 staff assistant, and even if she eventually may be able to perform at that level, we judge that she would not be able to advance beyond that level.” ### Administrative review, grievance, and Tribunal proceedings (2002–2004) - Following the September 6, 2002 decision, Applicant sought administrative review pursuant to GAO No. 31 and filed a Grievance on February 4, 2003. - The Grievance Committee considered the complaint via oral hearings and briefs. On February 9, 2004, the Committee recommended denial of Applicant’s Grievance, finding Applicant had not shown the non-conversion decision was arbitrary, capricious, discriminatory or procedurally defective in a manner that substantially affected the outcome. - Fund management accepted the Committee’s recommendation on March 2, 2004. - Applicant filed an Application with the Administrative Tribunal on May 26, 2004. ### Parties’ principal contentions - Applicant’s principal contentions included: 1. The non-conversion decision failed to consider all of the evidence and was arbitrary and capricious. 2. The non-conversion decision was affected by procedural irregularities. 3. The Fund “mismanaged” Applicant’s career. 4. The non-conversion decision was discriminatory on the basis of Applicant’s race and nationality. 5. Relief sought: - reinstatement with a fair opportunity to demonstrate suitability for conversion to regular staff; - compensatory and moral damages in the amount of three years net salary; and - legal costs. - Respondent’s principal contentions included: 1. The non-conversion decision was a reasonable exercise of managerial discretion and consistent with the Guidelines for Fixed-Term Appointments. 2. The decision was based on a proper assessment of Applicant’s performance and potential, and did not fail to take account of material facts. 3. Applicant was given regular feedback, monitoring, and ample opportunities to improve but did not attain the level required for conversion. 4. Applicant has not shown procedural irregularities or that the Fund mismanaged her career. 5. Applicant has not shown discrimination on the basis of race or nationality. ### Applicable policy, monitoring checkpoints, and standard of review - The Fund’s policy is to hire virtually all new staff on fixed-term appointments preliminary to indefinite appointments; for appointments commencing prior to December 2002, the Guidelines for Fixed-Term Appointments (August 1995) govern. - The Guidelines’ stated purposes include ensuring fixed-term staff understand their status and prospects for conversion. The Guidelines emphasize that “The Fund’s legal obligation does not go beyond the initial term . . .” and set three criteria for conversion: - (a) performance during the fixed-term, - (b) potential for a career with the Fund, and - (c) the staffing needs of the organization. - The Guidelines impose obligations on both supervisors and fixed-term appointees: - Supervisors should provide suitable assignments, clear expectations, appropriate guidance, and timely feedback. - The fixed-term staff member must be prepared to seek assistance from supervisors; Recruitment Division can assist upon request. - Checkpoints for performance assessment occur at six, twelve and eighteen months after appointment; for Grade A1–A8 staff, the first six months normally constitute a formal probationary period. The formal conversion decision is to be taken eighteen months after appointment. - On extensions: as an exception, a department may request a one-time extension of the appointment for up to one year if inadequate information exists to base a final conversion decision. - Standard of review applied by the Tribunal: discretionary managerial 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 decision whether to convert is characterized as a “performance-based decision,” with a general principle of deference to managerial assessments of an employee’s qualifications and abilities. *Judgment No. 2006-3 (Ms. "U"), IMF Administrative Tribunal Reports, Vol. V* ### 37. Moreover, the discretion at issue in the conversion of fixed-term ### Conversion of fixed-term appointments (Judgment No. 2006-3, Ms. “U”) ### Legal framework and standards - The Fund’s Guidelines require “a clearly positive assessment for taking the important step of committing the Fund to providing a career opportunity for the individual.” - A fixed-term appointee “has no entitlement to the continuation of his employment beyond the term of the appointment,” and “the burden of proof rests squarely with the applicant in challenging a decision not to convert his fixed-term appointment to regular staff.” (Ms. “C”, para. 21) - By contrast, a staff member with an appointment of indefinite duration is presumed to continue in employment absent a showing of unsatisfactory performance, consistent with the requirements of GAO No. 16. - Probation conversion discretion is constrained by principles of fairness, including adequate opportunity to demonstrate satisfactory performance and suitability for career employment. (McNeill, para. 44; Salle, para. 32) - Supervisory obligations under the Fund’s Guidelines: provide suitable assignments, clear expectations, appropriate guidance, timely feedback, and exposure to tasks required of permanent employees. (Salle, para. 33) ### Factual findings on performance, supervision, and extensions - Applicant’s performance assessments were mixed over time: “effort and improvement were noted,” but “the overall level of Applicant’s performance was assessed as below the norm required for conversion.” (para. 40) - Applicant received repeated cautionary evaluations and encouragement at signs of improvement. - Applicant’s fixed-term appointment was extended twice: “two 6-month intervals.” - The second 6-month extension was effected on the ground that “[a]lthough she has not been learning the skills quickly enough to justify a conversion now, Ms. [“U”] is keen and anxious to improve her skills.” (SPM’s Memorandum to HRD of March 13, 2002.) - The 2001 Annual Performance Report warned: Ms. “U” “. . . will need to show significant improvement at the end of the extension period” to justify conversion. (para. 42) - Documented areas for required improvement included “a continuing lack of accuracy in her typewritten work from heavily edited drafts,” plus initiative in asking questions and seeking advice on prioritization. (Expiration of Fixed-Term Appointment Form of August 15, 2001.) (para. 43) - In response to Applicant’s concern about inadequate developmental opportunity while in “Division i,” management transferred Applicant to “Division ii” to provide “daily opportunities to hone her editing and proofing skills.” (Expiration of Fixed-Term Appointment Form of August 15, 2001.) (para. 45) - Management assigned an experienced Senior Administrative Assistant to monitor and coach Applicant and engaged the Staff Development Division of the Human Resources Department to provide additional assistance. (para. 51) ### Procedural review and evidentiary assessment - Fluctuations in performance appraisals do not, by themselves, indicate procedural irregularity: “Favourable appraisals at one stage . . . do not dictate confirmation” and unfavorable ones do not necessarily lead to termination. (Salle, para. 28) (para. 40) - The Tribunal found that supervisors provided periodic formal and informal appraisals, warnings, and opportunities to remedy deficiencies consistent with the Guidelines. (paras. 38, 41–46) - The Tribunal concluded the Fund took into account relevant and significant facts for each review period: the 2000 APR included the mid-year memorandum from the Administrative Officer who supervised Applicant as a Departmental “floater”; the “Division ii” Chief solicited input from the earlier Division Chief in preparing the 2001 APR; and the “Division ii” Chief testified to direct observations of Applicant’s persistent accuracy problems. (para. 48) - The Tribunal found no irregularity of procedure, no “career mismanagement,” and no failure by management to consider relevant evidence or to reach a decision that a reasonable SPM could have made. (para. 49) ### Discrimination allegation - Applicant alleged the non-conversion decision was affected by discrimination on the basis of race and nationality. - Applicant advanced no specific allegations or proof and relied instead on an asserted “discriminatory impact” from a decrease in the number of persons of her racial background in her Department. (para. 50) - The Tribunal found that the alleged fact was “far from probative of discrimination” and that Applicant did not show the decision was affected by discrimination on the basis of race or nationality. (para. 50) ### Conclusions and decision - The Tribunal’s summary of findings: - Applicant was repeatedly warned of performance shortcomings, consistent with the Fund’s Guidelines for Fixed-Term Appointments. (para. 51) - Applicant was assigned to a Senior Administrative Assistant who engaged in detailed monitoring and coaching. (para. 51) - The Department sought and received guidance from the Staff Development Division to advance Applicant’s skills. (para. 51) - Applicant was advised on numerous occasions of continued shortcomings, especially the accuracy of her typewritten work, a core competency for staff assistants. (para. 51) - Transfer to “Division ii” and the assignment to a Senior Administrative Assistant remedied any earlier deficiency in developmental opportunities. (para. 52) - Management completed APRs collaboratively, taking into account former supervisors’ views after transfers. (para. 52) - After two extension periods, supervisors judged Applicant’s progress insufficient and her potential for a Fund career unproven. The Tribunal will not substitute its judgment when managers acted with deliberation and without improper motive. (para. 53) - Decision: The Administrative Tribunal unanimously decided that “The Application of Ms. ‘U’ is denied.” (Decision; para. concluding) - Judgment signed by: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - Celia Goldman, Registrar - Place and date of decision: Washington, D.C., June 7, 2006. (Decision) *IMF Administrative Tribunal, Judgment No. 2006-3 (Ms. “U”) — Decision dated June 7, 2006.* ### 2. Applicants, in identical Applications, contest as arbitrary and an ### Judgment No. 2006-4 (Baker et al.) — Mootness of Applications Challenging IMF Executive Board Compensation Decision ### Procedural history and current issue - Applicants filed Applications with the Administrative Tribunal on April 25, 2005. - The Executive Board adopted the decision challenged by Applicants on January 24, 2005. - On December 6, 2005, the Tribunal denied the Fund’s Motion for Summary Dismissal, concluding the Applications were not “clearly inadmissible” under Rule XII and rejecting the Fund’s contention that Applicants failed Article II, Section 1(a) threshold that an administrative act must “adversely affecting” him. - Respondent filed its Answer on January 23, 2006; Applicants filed their Reply on March 21, 2006; the Reply was transmitted to Respondent on March 31, 2006 after supplementation. - On April 14, 2006, the Executive Board adopted a new comprehensive compensation decision that by its terms “. . . supersedes all previous decisions concerning the staff compensation system.” - On April 17, 2006, Respondent filed a Motion for Dismissal of the Applications as Moot; the Motion was supplemented April 18, 2006 and transmitted to Applicants the following day. - Applicants filed an Objection to the Motion on May 25, 2006. - Pursuant to Rule XII, para. 2, the filing of the Motion for Dismissal suspended the exchange of pleadings on the merits; the Tribunal’s present consideration is confined to the question of alleged mootness. ### Factual background relevant to the mootness question - The Fund and the World Bank adopted a revised compensation system in 1989; the Fund’s system was extensively reviewed during 1998–2000. - The Executive Board had annually decided adjustments to align the Fund’s salary structure with comparator markets; those systems had been in effect for 16 years when the Board decided to modify the compensation system in January 2005. - The Executive Board’s January 24, 2005 decision amended the salary-setting system to expand circumstances in which management and the Executive Board may exercise discretion in setting the annual structural salary increase, including when the Fund’s payline falls within a 10-20 percent testing range relative to the combined French/German comparator market. - The Director of Human Resources’ message summarized that the change “makes it possible for judgment on the size of the structural increase to be exercised when the payline for the Fund falls within the 10-20 percent testing range . . .” and that the extent of discretion within the testing range is constrained and must be based on evaluation of factors bearing on international competitiveness. - Two errors were discovered in the comparator data used in the 2004 compensation review; correction placed the 2004 U.S.-indicated increase within the testing range and, on March 30, 2005, the Executive Board approved a supplementary increase in the Fund’s salary structure of two percentage points with effect from May 1, 2004. - That retroactive adjustment increased the 2004 base relative to the U.S. comparator by two percentage points, which lowered the U.S.-indicated increase for 2005; consequently, the structural increase called for by the amended system in 2005 did not differ from what would have been called for under the pre-amendment system. ### Text of the January 24, 2005 decision challenged - Key operative provisions adopted January 24, 2005 included: 1. An evaluation of international competitiveness shall be conducted in all cases where the structural salary increase indicated by the U.S. comparator market would position the Fund’s payline 10 percent to 20 percent above the payline indicated by the combined French/German comparator market. 2. The evaluation’s purpose is to determine whether any adjustment to the structural salary increase indicated by the U.S. comparator market is warranted, taking into account factors including the level of the indicated Fund payline within the 10-20 percent margin, recent recruitment and retention experience, and exchange rate and tax developments. 3. If a downward adjustment would position the Fund’s payline at less than 20 percent above the combined French/German payline, the resulting Fund payline cannot be less than the higher of: (a) a level equal to 10 percent above the combined French/German payline, and (b) a level resulting from a percentage structural salary increase at least equal to the percentage increase in the Washington metropolitan area CPI for the 12-month period ending the preceding January. (EBAP/05/9, Sup. 1, 1/21/05) — Adopted January 24, 2005. ### April 14, 2006 Executive Board decision (contested relevance) - The April 14, 2006 decision adopts paragraphs 4–52 of EBAP/06/38 (March 31, 2006) and states it “. . . supersedes all previous decisions concerning the staff compensation system.” - Introductory provisions of the revised system include: - Annual compensation reviews conducted on a three-year review cycle: (i) in the first year comparator-based reviews with full comparisons for Grades A9-B2 and A1-A8 and assessment of international competitiveness (for Grades A9-B2), and (ii) in intervening years structural adjustments based on an index of private and public sector salary increases in the United States. - The system contemplates new level comparisons between each Fund grade and corresponding comparator-market compensation rates and the possibility of grade-by-grade adjustments; evaluation of international competitiveness will occur within a broader comparator market review. - The provisions were intended to become effective upon Executive Board approval and to govern the 2006 and subsequent annual compensation reviews. ### Parties’ principal contentions on mootness Respondent’s contentions: - The Applications have been rendered moot by the April 14, 2006 decision that expressly “. . . supersedes all previous decisions concerning the staff compensation system.” - Applicants’ pleadings show their challenge relates to the specific context in which the January 24, 2005 decision was taken. - The sole relief sought by Applicants—rescission of the January 24, 2005 decision—had been realized before any tangible effect on Applicants’ compensation; no other form of remedy would be appropriate and adjudication would have no legal value. - The April 14, 2006 decision fundamentally revises the compensation system and does not re-enact the same decision without change in substance. - Elements of discretion similar to January 2005 are included in the new system but operate in a different, modified context; inclusion of a similar feature does not amount to re-enactment of the challenged decision. Applicants’ contentions: - Although the April 14, 2006 decision states it “. . . supersedes all previous decisions,” the Executive Board continues to reserve the element of discretion that Applicants challenged. - The challenge targets the Executive Board’s exercise of discretion that could render a rules-based compensation system ad hoc; rescission of January 24, 2005 is not the only relief sought or the sole issue for adjudication. - A Tribunal determination that the January 24, 2005 decision was invalid would have legal value by setting limits on the Executive Board’s discretion and preventing exercise of discretion inconsistent with a rules-based system. - The discretion regarding downward adjustments is preserved in the new system, so the possibility of recurrence exists. - The dispute meets the three-prong test for “capable of repetition yet evading review”: a. there is a reasonable expectation that the same Applicants could be subjected to the same action again; b. if the issue were to arise again it is likely to evade review because of the time required to obtain a Tribunal decision; and c. there is a reasonable expectation the Executive Board could exercise discretion in a similar manner in the future. ### Preliminary legal point considered - Applicants object to Respondent’s reliance on Rule XII to permit a Motion to Dismiss at this juncture, describing the Motion as lacking good faith and a dilatory measure causing them “considerable damage.” - Rule XII was adopted pursuant to Article X, Section 2(d) of the Tribunal’s Statute, which requires Rules of Procedure to include a provision concerning “summary dismissal of applications without disposition on the merits.” Rule I, para. 2 provides that the Rules are subject to the Tribunal’s Statute. *IMF Administrative Tribunal, Judgment No. 2006-4 (Baker et al.), procedural and factual summary as contained in the cited judgment text.* ### 15. In the Tribunal’s view, Respondent’s Motion is not baseless, particu- ### imfat-5 - 15. In the Tribunal’s view, Respondent’s Motion is not baseless, particularly ### Tribunal’s preliminary assessment of Respondent’s Motion - The Tribunal found Respondent’s Motion “not baseless” because the intervening Executive Board decision by its terms “. . . supersedes all previous decisions concerning the staff compensation system.” - The Tribunal did not consider that the Motion “fails to demonstrate good faith or is otherwise inappropriate.” ### Central issue: Did the Executive Board’s April 14, 2006 decision render Moot the pending Applications? - Principal question for decision: whether the Executive Board’s April 14, 2006 decision renders moot the pending Applications by essentially re-enacting the element of the January 24, 2005 contested decision that Applicants contended “adversely affected” them. - Pertinent determination: whether the April 14, 2006 decision “essentially re-enacts” that element of the January 24, 2005 decision. ### Summary of the Tribunal’s prior (Baker) findings relevant to admissibility - The Tribunal in Baker concluded Applicants were “adversely affected” for purposes of maintaining their Applications pursuant to Article II, Section 1(a) of the Statute because the contested decision had “some present effect” on Applicants’ position, even though it had no financial impact in the 2005 compensation round. - Key reproduced dispositive passages: - “The Executive Board of the Fund, in January 2005, took a decision that widens the range of discretion that it may exercise in setting staff salaries. Application of that decision in 2005 did not have adverse financial consequences for the compensation of staff members for the reasons explained above. Nevertheless, the decision of the Executive Board was adopted and remains in force. It will be applied in 2006 to affect the compensation of staff members, unless the Executive Board decides otherwise.” - “The widening of the Fund’s discretion to adjust the compensation of staff members of the Fund permits the Applications to cross the threshold of admissibility. That threshold is not steep, because, by the terms of Rule XII of the Rules of Procedure, an application may be summarily dismissed only ‘if it is clearly inadmissible.’” - Cited ILOAT authority: “The necessary, yet sufficient, condition of a cause of action is a reasonable presumption that the decision will bring injury. The decision must have some present effect on the complainant’s position.” ### Parties’ positions on whether the April 14, 2006 decision preserves the “adverse effect” - Respondent’s position: - Acknowledges that the new compensation system “contains elements of discretion regarding the extent to which the Executive Board may make downward adjustments that are ‘similar to’ those introduced in January 2005,” but contends these elements will “operate in a different context and, as a result, have been modified.” - Argues that the inclusion of a similar—but not identical—feature “should not be misconstrued as essentially reenacting the challenged decision.” (Respondent’s Motion, pp. 6-7.) - Applicants’ position: - Contend the challenge to the January 24, 2005 decision goes directly to the exercise by the Executive Board of its discretion with regard to amendment to the “rules-based” compensation system. - Argue that “A determination by the Tribunal that the January 2005 decision was invalid would have legal value as it would set the limits of the Board’s discretion in again arbitrarily amending the compensation system and prevent the Board from exercising discretion in a manner that is inconsistent with a rules based compensation system.” (Applicants’ Objection, p. 4.) ### Tribunal’s findings on continuity of discretionary elements and legal effect - The Tribunal accepts Applicants’ contention that both the January 2005 and April 2006 decisions “contain and sustain provisions that afford the Fund a wider discretion in respect of salary adjustments of the staff.” - The Tribunal also finds that the January 24, 2005 decision “has been superseded by virtue of the adoption of a comprehensive new system of compensation approved by the Executive Board on April 14, 2006.” - Consequences of supersession: - The holding that the January 2005 decision could have effects in 2006 “no longer obtains.” - The contested January 2005 decision “no longer has any ‘present effect.’” - The only relief sought in the Applications—rescission of the January 2005 decision—“has essentially already occurred.” - The Tribunal “cannot quash a decision that has already been rescinded.” - The Tribunal recognizes that the April 2006 scheme “retains elements of discretion regarding the extent to which the Executive Board may make downward adjustments in staff compensation,” and that such elements “may best be contested in distinct proceedings.” ### Procedural and pragmatic considerations addressed by the Tribunal - Were the Motion denied, only Respondent’s Rejoinder would remain to be filed on the merits, leaving the Tribunal to adjudicate elements of a superseded compensation scheme without Applicants’ views on the April 14, 2006 system. - The Tribunal considered the Applicants’ argument that acceptance of the Motion would allow the issue to “evade review because of the time it would take to obtain a decision from the Tribunal” and found it “not persuasive,” noting that Executive Board adoption of different compensation systems is infrequent and the issue is not evanescent. - The Tribunal concluded Applicants and similarly situated staff “retain the right to bring a case in this Tribunal in respect of the April 2006 decision and in particular with respect to the discretionary element found both in the January 2005 and April 2006 renderings.” ### Costs - Article XIV, Section 4 of the Statute provides that if the Tribunal concludes an application is well-founded in whole or part, it may order reasonable costs to be borne by the Fund, but the provision “does not contemplate an award of costs in the absence of a decision on the merits of an Application.” - The Tribunal awarded costs related to the earlier phase of the proceedings because Applicants prevailed in respect of the denial of the Fund’s earlier Motion for Summary Dismissal (Baker et al., Applicants v. International Monetary Fund, IMFAT Judgment No. 2005-3 (December 6, 2005)). - The Fund shall pay Applicants the sum of $4,200 for fees incurred in preparing their Objection to the earlier Motion. ### Decision (unanimous) - 1. The Motion for Dismissal of the Applications as Moot is granted. - 2. The Fund shall pay Applicants the reasonable costs of their legal representation incurred in the preparation of their successful Objection to the Fund’s earlier Motion for Summary Dismissal in the sum of $4,200. *Administrative Tribunal of the International Monetary Fund, Judgment No. 2006-4 (Baker et al.), June 7, 2006; Judgment No. 2006-5 (Ms. “AA”), November 27, 2006.* ### 5. The Applicant may file with the Registrar an objection to the motion within thirty ### imfat-5 - 5. The Applicant may file with the Registrar an objection to the motion within thirty ### Procedural rules on objections and motions - Rule: "The Applicant may file with the Registrar an objection to the motion within thirty days from the date on which the motion is received by him." - Filing requirements: - "The complete text of any document referred to in the objection shall be attached in accordance with the rules established for the reply in Rule IX." - "The requirements of Rule VII, Paragraph 4, shall apply to the objection to the motion." - Registrar action: "Upon ascertaining that the objection meets the formal requirements of this Rule, the Registrar shall transmit a copy to the Fund." - No further pleadings: "There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests." ### Case procedural history and disposition scope - Key dates and filings: - Applicant filed an Objection to the Motion on "26, 2006" (as recorded in the text). - On "April 27, 2006," the President, pursuant to Rule XXI, para. 3, requested Respondent present views on Applicant’s requests for (a) anonymity and (b) oral proceedings (insofar as the request reflected oral proceedings on admissibility). - Respondent’s views were submitted on "May 12, 2006" and transmitted to Applicant. - Effect of Motion for Summary Dismissal: - "Pursuant to Rule XII, para. 2, the filing of a Motion for Summary Dismissal suspends the period of time for answering the Application until the Motion is acted on by the Tribunal." - Consequently, consideration is confined to admissibility. ### Request for anonymity (Rule XXII) - Applicant’s request: - Applicant (Ms. "AA") requested anonymity pursuant to "Rule VII, para. 2(j)" and "Rule XXII," asserting she allegedly was victim of "egregious behavior, harassment and a hostile work environment" by Fund supervisors and that reinstatement would risk "possible retribution and/or retaliation in the Fund." - Fund’s position: while "strongly objecting to Applicant’s statements regarding the reasons for her request for anonymity, the Fund has no objection to the request for anonymity itself." - Rule XXII text (complete): 1. "In accordance with Rule VII, Paragraph 2(j), an Applicant may request in his application that his name not be made public by the Tribunal." 2. "In accordance with Rule VIII, Paragraph 6, the Fund may request in its answer that the name of any other individual not be made public by the Tribunal. An intervenor may request anonymity in his application for intervention." 3. "In accordance with Rule VIII, Paragraph 5, and Rule IX, Paragraph 6, the parties shall be given an opportunity to present their views to the Tribunal in response to a request for anonymity." 4. "The Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual." - Tribunal analysis and conclusions: - Burden: the party seeking anonymity must show "good cause"; consent of the other party alone is insufficient. - Comparative practice: tribunals generally treat disclosure of party names as the rule and confidentiality as the exception; anonymity is typically granted in cases involving alleged misconduct, health, or family relations. - Specific finding: because the Application was found inadmissible and the allegations were not considered on the merits, "to protect her supervisors from allegations that have not been tested, the Tribunal deems it appropriate to treat the name of the Applicant anonymously." ### Request for oral proceedings (Rule XIII) - Rule: The Tribunal may hold oral proceedings ". . . if, on its own initiative or at the request of a party and following an opportunity for the opposing party to present its views . . . , the Tribunal deems such proceedings useful." (Rule XIII, para. 1, as amended in 2004.) - Parties’ positions: - Applicant requested oral proceedings to establish by testimony the truth of facts supporting timeliness of her request for review. - Respondent maintained there is no disputed issue of fact on admissibility and oral proceedings are not warranted. - Tribunal determination: "The Tribunal concludes that it is able to decide the question of admissibility on the basis of the pleadings and the documentary evidence alone." ### Factual background (key factual chronology and assertions) - Employment and non-conversion: - Applicant employed on a two-year fixed-term appointment from "September 17, 2001 through September 16, 2003" at Grade "A9" in a position initially designated Deputy Section Chief and later reclassified. - On "March 20, 2003," Applicant’s fixed-term appointment "was not converted, on the ground of inadequate performance." Applicant left the Fund upon expiration of appointment. - Subsequent events alleged by Applicant: - In "January 2005," Applicant alleges she received a telephone call from her successor who communicated that she and others were experiencing harassment. - Administrative review steps taken by Applicant: - "May 4, 2005": Applicant, through counsel, addressed a "Request for Review of [her] Appointment Expiration" to the First Deputy Managing Director, alleging that "the reason for the performance shortcomings attributed to her by her supervisors was pre-textual" and that a "hostile work environment" existed. - "May 27, 2005": HRD asked Applicant to supplement the request explaining what "new facts" had come to her attention and how they were relevant. - "June 14, 2005": Applicant’s counsel responded alleging that the successor’s account provided "new facts" showing a "pattern or practice of harassment" and that Applicant "did not know that [the non-conversion decision] was unjustified until these facts were brought to her attention." - "July 15, 2005": HRD Director replied that alleged facts did not provide a basis for administrative review of her "belated challenge" and that the new information "cannot explain her failure to do so previously." - "August 5, 2005": Applicant filed a Grievance with the Fund’s Grievance Committee. - "December 20, 2005": Grievance Committee dismissed the Grievance as untimely, finding Ms. "AA" ". . . knew or should have known the staff rules applicable to the dispute resolution process during her Fund employment" and that she "knew in late 2003 of the fact that she was being harassed and that her performance appraisals did not reflect her true performance." - "February 27, 2006": Ms. "AA" filed her Application with the Administrative Tribunal. ### Channels of administrative review and exhaustion issue - Central legal issue: whether Applicant fulfilled the exhaustion of remedies requirement of Article V of the Tribunal’s Statute. - Timeliness facts: - It is not disputed that Applicant did not initiate administrative review procedures "within the six-month time period following either the non-conversion decision or the conclusion of her employment with the Fund." - The Fund declined to undertake administrative review on the basis that Applicant failed to make her request for review within time limits prescribed by GAO No. 31. - Procedural distinction: This case differs from Mr. "O" (Judgment No. 2006-1) where the Tribunal found that when management elects to review a complaint at the highest levels, that election can exceptionally substitute for formal administrative review. ### Parties’ principal contentions (as summarized by the Tribunal) - Applicant’s contentions on the merits: 1. "Applicant was subjected to harassment and a hostile work environment in contravention of Fund rules." 2. "The decision not to convert Applicant’s fixed-term appointment to regular staff was impermissibly affected by this harassment." 3. "Specifically, the harassment and hostile work environment to which Applicant was subjected unfairly affected both her work performance and the appraisal thereof. The assessment of Applicant’s performance did not reflect her true performance." 4. Applicant seeks relief: - a. rescission of the non-conversion decision; - b. reinstatement and appointment as a regular staff member with retroactive pay and benefits; - c. moral and punitive damages; and - d. attorneys’ fees and costs. - Respondent’s contentions on admissibility: - (Respondent’s specific admissibility arguments are introduced in the source but the excerpt ends at the heading "Respondent’s contentions on admissibility.") *Judgment No. 2006-5 (Ms. "AA"), IMF Administrative Tribunal* ### 1. Applicant failed to challenge the non-conversion decision or any ### JUDGMENT NO. 2006-5 (MS. "AA") ### Summary findings on admissibility - The Tribunal found Applicant’s Application inadmissible because Applicant failed to challenge the non-conversion decision or any aspect of her treatment by supervisors within the time limits prescribed by GAO No. 31. - Applicant’s claim of “exceptional circumstances” to excuse delay in initiating administrative review was found to be without merit. - Neither the “discovery rule” nor “equitable tolling” excuse Applicant’s delay: the complaint involved facts that by their nature would have been known to Applicant at the time they occurred, and the record shows Applicant believed during employment that negative performance reviews were unjustified. - Information about the experience of other staff members might be relevant but was not essential to Applicant’s claims. - As a Fund staff member, Applicant is presumed to have had knowledge of the rules governing the dispute resolution process. ### Applicant’s contentions (as summarized by the Tribunal) - Applicant contended that a request for administrative review was timely under the “discovery rule” because it was made within six months of when Applicant learned of all of the facts essential to support her claims. - Applicant maintained she did not discover, and could not have discovered, all essential elements of her claim until after leaving the Fund and only upon learning in January 2005 of another staff member’s experience did she know she had been subjected to a “pattern or practice” of impermissible conduct. - Applicant asserted that “equitable tolling” applies because, despite due diligence, she was unable to obtain before January 2005 the essential facts bearing on the existence of her claim. - Applicant claimed she was not given notice of the applicable recourse procedures at the time of the non-conversion of her appointment. ### Consideration of admissibility by the Tribunal - The sole question was whether Applicant met the requirements of Article V, Section 1 of the Tribunal’s Statute requiring exhaustion of all available channels of administrative review before filing an application. - The Tribunal noted the Grievance Committee had barred Ms. “AA”’s Grievance as untimely under GAO No. 31, but emphasized that such a determination is “relevant to but not necessarily dispositive” of exhaustion for the Tribunal’s purposes; the Tribunal decides for itself whether administrative channels have been exhausted. (Estate of Mr. “D”, para. 85). - The Tribunal reiterated that recourse procedures are meant to be “complementary and effective,” affording remedies where merited and building a detailed record for adjudication; exceptional circumstances should not be easily found. (Estate of Mr. “D”, paras. 102, 108, 120; Mr. “O”, paras. 48–50). - It was undisputed Applicant did not initiate administrative review until more than two years after the non-conversion decision and almost twenty months after the conclusion of her employment. - GAO No. 31, Rev. 3, Section 6.02 requires a request for administrative review “. . . within six months after the challenged decision was made or communicated to the staff member . . . .” - Applicant argued para. 10 of Staff Bulletin No. 99/15 (Harassment—Policy and Guidance to Staff), Attachment, supported a “pattern or practice” requirement: “Mildly offensive comments or behaviors can rise to the level of harassment if they are repeated or become pervasive. At the same time, a single incident will be considered harassment if it is so severe that it poisons the overall working environment.” - The Tribunal noted Article XVI of the Statute (revision of judgments upon discovery of a decisive fact) is inapposite to excusing delay in initiating a claim. - The Tribunal reviewed comparative jurisprudence (In re Saunders, ILOAT Judgment No. 1466 (1996); In re Schulz, ILOAT Judgment No. 575 (1983)) emphasizing that time limits begin when a decision is notified and exceptions are narrow (vis major or misleading/withholding by the defendant). - Even if a “discovery rule” could ever establish “exceptional circumstances,” the Tribunal concluded the facts did not support its application here: Applicant “knew in late 2003 of the fact that she was being harassed and that her performance appraisals did not reflect her true performance,” and she had made “pleas of assistance” to Fund officials during employment. - The Fund’s harassment definition at para. 3 of the policy—“Harassment is any behavior, verbal or physical, that unreasonably interferes with work or creates an intimidating, hostile, or offensive work environment”—supported that Applicant had sufficient notice to bring a claim prior to January 2005. - Lack of individual notification of review procedures on the Expiration of Fixed-Term Appointment form does not generally excuse failure to comply with procedures; no circumstances in this case supported an exception for a fixed-term staff member. (Estate of Mr. “D”, para. 120). ### Key determinations and outcome - The Tribunal concluded Applicant did not establish “exceptional circumstances” to excuse substantial delay in instituting a request for review under the Fund’s internal recourse procedures. - Applicant did not meet the exhaustion of remedies requirement of Article V, Section 1 of the Tribunal’s Statute. - The Application was therefore “clearly inadmissible” (Rule XII) and was summarily dismissed. ### Decision - The Administrative Tribunal of the International Monetary Fund unanimously granted the Motion for Summary Dismissal of the Application. - Judges on the panel: - Stephen M. Schwebel, President - Nisuke Ando, Associate Judge - Michel Gentot, Associate Judge - The Judgment was signed by Stephen M. Schwebel, President, and Celia Goldman, Registrar. - Place and date of judgment: Washington, D.C., November 27, 2006. *Administrative Tribunal of the International Monetary Fund — Judgment No. 2006-5 (Ms. "AA")* ### 2. Applicants challenge the denial of their first, i.e. 1999, request on the ### 2. Applicants challenge the denial of their first, i.e. 1999, request on the ### Challenges to the 1999 request - Applicants assert the 1999 denial was based on a provision of SRP Section 11.3 that "effectively precluded requests under Section 11.3 by or on behalf of children born out of wedlock." - Applicants maintain the 1999 denial represented "impermissible discrimination." - Applicants contend "exceptional circumstances" justify their failure to seek timely review by the Administrative Tribunal of the denial of their 1999 request and urge the Tribunal to waive its statute of limitations to consider their claim. - Respondent’s positions regarding the 1999 request: - Respondent maintains Applicants have failed to show "exceptional circumstances" to justify waiver of the statute of limitations. - Respondent contends the "marital relationship" requirement on which its denial was based is dispositive. - Respondent further contends that, had the 1999 request been reviewed on the merits by the Administration Committee, it properly would have been denied because the court orders underlying the request suffered from "defects of efficacy, finality, or meaning." ### Challenges to the 2002 request - Applicants’ claim regarding the 2002 request: - The 2002 request sought to reinstate the 1999 request in view of the amendment of Section 11.3 to encompass support orders for children born out of wedlock. - Applicants contend that Rule 9 of the Rules of the Administration Committee under Section 11.3 "is unreasonably interpreted to prohibit payment of past-due child support from future pension benefits." - Applicants maintain the child support orders of 1991, 1994, and 1995 that form the bases for their 1999 and 2002 requests "satisfied all of the requirements set forth in Section 11.3 and the applicable Administration Committee Rules." - Respondent’s position regarding the 2002 request: - Respondent contends the policy of providing only for "prospective payments" under Section 11.3, i.e. giving effect to orders for ongoing support but not for payment of "judgment debts," is reasonable and appropriate. ### Challenges to the 2003 request - Applicants challenge the denial of their 2003 request on the ground that the Administration Committee erred in concluding that a "bona fide dispute" existed as to the "efficacy, finality, or meaning" of the 2003 court order underlying that request. - The 2003 court order at issue "provided for maintenance for Ms. 'M' after reaching the age of majority." - Respondent maintains the SRP Administration Committee correctly concluded that there existed a "bona fide dispute" as to the efficacy, finality, or meaning of the underlying court order. ### Dispute over requirement for court orders under Section 11.3 - Applicants assert Section 11.3 does not require that a court order underlying a request either expressly direct payment from the retiree’s pension benefits or require the retiree to make such a direction. - Respondent contends Section 11.3 requires that the court order underlying a request either: - "expressly direct payment from a Fund retiree’s pension" or - "order the retiree to direct the Administration Committee to pay a portion of his Fund pension to the alternate payee." - Respondent maintains all Applicants’ requests could be denied on the basis of that requirement alone. - Respondent also asserts Applicants "failed to provide the Administration Committee with relevant documents" in the course of its consideration of their requests. - Applicants assert the Fund has committed "grave legal and factual errors" in responding to their requests. ### Procedural history and Tribunal actions (key dates and actions preserved) - May 18, 2004: Ms. "M" and Dr. "M" filed an Application with the Administrative Tribunal. - Pursuant to Rule VII, para. 6 of the Tribunal’s Rules of Procedure, the Registrar advised Applicants the Application did not fulfill the requirements of paras. 2(c) and 2(d); Applicants were given fifteen days to correct the deficiencies. - The Application, having been brought into compliance within the indicated period, is considered filed on the original date. - June 1, 2004: The Application was transmitted to Respondent. - June 15, 2004: The President of the Administrative Tribunal, pursuant to Rule XXI, paras. 2 and 3, suspended the pleadings and requested views of the parties on whether Mr. "N" should be invited to participate as an Intervenor under Rule XIV and Article X, Section 2(b) of the Statute. - June 17, 2004: Applicants responded that they were not opposed to Mr. "N"’s intervention unless it would make the proceedings more complicated, lengthier or costlier. - June 23, 2004: The Fund communicated it was strongly of the view Mr. "N" should be invited to participate as an Intervenor. - June 21, 2004: Pursuant to Rule XIV, para. 4, the Registrar issued a summary of the Application within the Fund. - July 30, 2004: Respondent filed its Answer to the Application. - November 2, 2004: Applicants submitted their Reply. - December 3, 2004: The Fund’s Rejoinder was filed. - The Tribunal invited Mr. "N" to participate as an Intervenor; after considering parties’ views and consulting Associate Judges, the President decided to invite Mr. "N" to participate (meeting statutory prerequisites under Article II, Section 1 and having a right that may be affected by the Judgment). - July 15, 2004: Parties were informed of the decision to invite Mr. "N" and its rationale. - August 23, 2004: The Tribunal invited Mr. "N" to participate and provided him with copies of Applicants’ Application and the Fund’s Answer; his submission was due September 22, 2004. - Mr. "N" did not file a submission and on September 27, 2004 informed the Registrar by telephone he declined the invitation. - September 29, 2004: The Registrar notified the parties that Mr. "N" declined the invitation. - September 29, 2004: The President issued a Request for Information to Applicants to provide specified documents referenced in the pleadings and to identify and indicate the current status of any pending litigation relating to any family support obligations of Mr. "N", explain relevance, and advise on an ongoing basis of any changes; Applicants responded with submissions beginning in late 2004 through August of 2006. - February 21, 2006: The President issued to Respondent a Request for Information to submit a model court order as referenced in its pleadings and, if it differed, the model court order currently provided to requesters under SRP Section 11.3; Respondent replied on March 3, 2006. - February 21, 2006: The President issued a Request to Applicants and Respondent to file simultaneous Additional Statements to comment on any relevant litigation or other developments following the closure of the regular pleadings. - March 14, 2006: Applicants submitted an Additional Statement. - March 21, 2006: Respondent submitted an Additional Statement. - June 12, 2006: The President issued an additional Request for Information to Applicants to provide an official translation of a November 18, 2005 order earlier submitted by Applicants relating to the scheduling of a hearing by the Local Court in Frankfurt on the Main for November 10, 2006, to identify the nature of that hearing, the question(s) to be considered, and when decision was expected; Applicants replied on June 22, 2006. - November 20, 2006: The President issued a final Request for Information to the Fund; the Fund responded on November 22, 2006. - The Tribunal decided not to hold oral proceedings because they were not necessary for disposition of the case. - The Tribunal had the benefit of submissions made by Applicants and by Mr. "N" in the underlying consideration by the SRP Administration Committee of Applicants’ 2003 request, as well as the minutes of the Administration Committee in respect of its 2004 Decision on Review. *Judgment No. 2006-6 (Ms. "M" and Dr. "M"), IMF Administrative Tribunal Reports, Vol. V* ### 21. The relevant factual background may be summarized as follows. ### JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M") — Relevant factual background ### Overview - Applicant Dr. “M” is a national and resident of Germany and is not and never has been a staff member of the Fund. - Mr. “N” is a former staff member of the Fund and a national of Finland who began receiving pension benefits from the Staff Retirement Plan in 1998. - Dr. “M” maintains that Mr. “N” is the father of her daughter, Applicant Ms. “M”, born in Washington, D.C. on January 9, 1984, when Dr. “M” and Mr. “N” were living together. - Since 1986, Applicants have resided in Germany and apart from Mr. “N”. - Applicants sought child support payments from Mr. “N”, resulting in litigation and proceedings before the IMF Administrative Tribunal. ### Enforcement and recognition proceedings — Washington, D.C. and Finland - Applicants obtained German court orders in 1991, 1994, and 1995 requiring Mr. “N” to pay child support until Ms. “M” reached the age of majority on January 9, 2002. - On July 16 and August 5, 1999, the Superior Court of the District of Columbia recognized the 1991, 1994, and 1995 German Orders and ordered that they be enforced. - As a result of the Washington, D.C. proceedings, Applicants received partial payment before the “apparent abscondance” of Mr. “N” from the court’s jurisdiction. - On April 30, 2002, the D.C. Superior Court calculated the outstanding amount owed by Mr. “N” and designated Dr. “M” as the appropriate payee. - Applicants obtained a decision from the Supreme Court of Finland on May 25, 2001, ordering enforcement in Finland of the German Order of 1994; enforcement was stayed as a result of a challenge filed by Mr. “N”. - Applicants assert that Mr. “N”’s objection in Finland was denied on December 14, 2004, but maintain execution against Mr. “N”’s property in Finland is not possible because it is encumbered. ### Requests to the Fund’s Staff Retirement Plan Administration Committee - Applicants made three requests (in 1999, 2002, and 2003) to the Administration Committee of the Fund’s Staff Retirement Plan to give effect to the German child support orders; denials of these requests form the bases for the Application in the Administrative Tribunal. - The first two requests (1999 and 2002) sought to give effect to the German Orders of 1991, 1994, and 1995; the third request (2003) was based on the 2003 German Order. ### D.C. court proceedings on Qualified Domestic Relations Order (QDRO) and pension garnishment - On the basis of the April 30, 2002 Superior Court Order, Applicants filed a Motion in the same court for a Qualified Domestic Relations Order (“QDRO”) against Mr. “N”’s Fund pension benefits; the Motion was denied on the ground of the Fund’s immunity from judicial process, a decision sustained by the D.C. Court of Appeals. - On June 21, 2006, the D.C. Superior Court, on remand and upon consideration of additional evidence, affirmed its earlier denial of a QDRO against the Fund but issued a QDRO against Mr. “N”, ordering him to direct the Administration Committee to pay past-due child support obligations to Ms. “M” from his future Fund pension payments. - By letter dated June 26, 2006, Dr. “M” informed the Tribunal of the June 21, 2006 Order; the Fund informed the Tribunal that, as of November 22, 2006, it had received neither a direction from Mr. “N” nor a request from Applicants in respect of the June 21, 2006 Order. ### German judicial proceedings — support before age of majority (1991, 1994, 1995) - 1991: Local Court of Darmstadt proceedings; Magistrate document dated January 14, 1991 records Mr. “N”’s acknowledgment of paternity. - Mr. “N” was summoned but did not appear; default judgments were issued: - March 14, 1991 default judgment ordering regular child support from birth (1984-01-09) until attaining age 18, arrears payable immediately; judgment provisionally enforceable. - July 20, 1994 default judgment supplementing support by 200 percent from birth (9 January 1984) until completion of age 18; judgment provisionally enforceable. - February 23, 1995 attachment order fixed monthly support amounts: - DM 753.- - from 9 January 1984 till 8 January 1992 - DM 912.- - from 9 January 1992 till 30 June 1992 - DM 1059.- - from 1 July 1992 till 8 January 1998 - DM 1254.- - from 9 January 1998 till 8 January 2004 - The D.C. Superior Court’s April 30, 2002 calculations: total amount owed by Mr. “N” pursuant to the 1991, 1994, and 1995 German Orders was U.S. $71,905.81 (excluding interest, counsel fees and costs) for the period from Ms. “M”’s birth until the age of majority. - None of the 1991, 1994, or 1995 German court orders references Mr. “N”’s Fund pension benefits. - May 22, 2002: Darmstadt Regional Court denied Mr. “N”’s appeal of a 2001 German child support order; court rejected objections including late appeal and belated challenge to paternity. ### German judicial proceedings — maintenance after age of majority (2003) - Applicants filed suit in the Local Court of Frankfurt on the Main seeking maintenance of €847,25 monthly from May 1, 2002, and €3,389,00 in arrears for January 1 through April 30, 2002, based on Ms. “M”’s status as a dependent student. - January 20, 2003 Frankfurt Court interim Order: - Describes Ms. “M” as illegitimate child of Mr. “N”, notes she reached age of majority on 2002-01-09. - Orders interim maintenance of €227,03 monthly from 2002-04-30, based on substantiated representation that Ms. “M” would continue to attend school. - States that with the July 20, 1994 Darmstadt Order, maintenance for Ms. “M” before reaching age eighteen had been “finally judged.” - Finds defendant (Mr. “N”) disposes of a net income of 15,000.00–17,000.00 US-Dollars, and mother’s net monthly income is 7,216,51 Euro. - Notes the Dusseldorf list minimum maintenance of 311,00 Euro and allocates a 73 percent share of maintenance obligation to defendant, resulting in the €227,03 monthly figure. - The 2003 Frankfurt Order makes no reference to Mr. “N”’s Fund pension benefits. ### Service and hearing developments related to the 2003 proceeding - Dr. “M” asserts service of the 2003 complaint on Mr. “N” has not been possible because he frustrated attempts to serve him in Finland and Washington, D.C.; an “Affidavit of Non-service” records attempted service at a Washington, D.C. address on June 30, 2003 with notation: “Not found. Female occupant stated subject not known at address.” - November 5, 2004 minutes of the Frankfurt Local Court state service on Mr. “N” at his Finnish address had not been effected and ordered a new court hearing. - November 18, 2005 decision in the Frankfurt case concluded conciliation proceedings were hopeless; Mr. “N” was summoned to appear at a hearing scheduled for November 10, 2006. - Applicants informed the Tribunal that the hearing was postponed until January 30, 2007 as service on Mr. “N” had not been effected. ### U.S. Family Division proceedings and D.C. Superior Court rulings (1997–1999) - 1997: Dr. “M” initiated proceedings in the Family Division of the Superior Court of the District of Columbia seeking enforcement of the German Orders of 1991, 1994, and 1995; claim filed on Applicants’ behalf by the German Institute for Guardianship on December 4, 1997. - March 13, 1998: Hearing Commissioner denied the request on grounds that (1) D.C. Superior Court lacked jurisdiction over Mr. “N” under the Uniform Interstate Family Support Act (“UIFSA”) and the D.C. long-arm statute; and (2) the German court’s personal jurisdiction was doubtful. - July 16, 1999: D.C. Superior Court reversed the Hearing Commissioner, rejecting both statutory defenses and concluding the trial court erred in dismissing on those bases; the Superior Court concluded it had personal jurisdiction over Mr. “N”. - August 5, 1999: D.C. Superior Court recognized the German Orders and ordered their enforcement. *Source: JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M"), IMF Administrative Tribunal Reports, Vol. V.* ### 42. In December 1999, a writ of attachment was served on the Bank-Fund ### JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M") ### Enforcement actions and District of Columbia court orders - In December 1999, a writ of attachment was served on the Bank-Fund Staff Federal Credit Union to garnish Mr. “N”’s bank account, yielding $37,607.53 in partial satisfaction of the amount due. - In December 2001, the D.C. Superior Court held Mr. “N” in contempt of court for failing to pay the remaining obligation and issued a warrant for his incarceration; Mr. “N” was not incarcerated at that time. The court set a payment schedule and withheld Mr. “N”’s passport. - After a single payment of $10,000, the court granted Mr. “N”’s request for his passport to travel abroad on business; Mr. “N” failed to appear at subsequent hearings and another warrant was issued in March of 2002. - On April 30, 2002, the D.C. Superior Court ordered that the total amount of child support owed pursuant to the German Orders of 1991, 1994, and 1995 be paid by Mr. “N” and disbursed “as [Dr. ‘M’] shall direct.” The April 30, 2002 order calculated the amount at U.S. $71,905.81. - On November 25, 2002, the Superior Court ordered Mr. “N” to pay an additional $30,137.63 in attorneys’ fees and costs and $27,904.81 in interest plus 4% per annum on the outstanding award. - The D.C. Court of Appeals denied Mr. “N”’s objections on December 8, 2005, affirming the Superior Court’s Order of August 12, 2003 directing Mr. “N” to pay the support arrears in full and characterizing Mr. “N”’s motions as “repetitive,” “baseless,” “frivolous,” and “abusive.” - The Fund states that Dr. “M” provided the SRP Administration Committee with the D.C. Superior Court Order of August 5, 1999; on May 2, 2002, Dr. “M” apparently forwarded an additional D.C. Superior Court Order, apparently the Order of April 30, 2002. ### Qualified Domestic Relations Order (QDRO) proceedings in the U.S. - On June 28, 2002, Dr. “M” sought a Qualified Domestic Relations Order “for enforcement of child support arrears as stated in the Order of this Court of April 30, 2002 ($71,905.81).” - The proposed QDRO stated it was “intended to be a Qualified Domestic Relations Order for enforcement of child support arrears pursuant to the domestic relations law of the District of Columbia.” The proposed order was similar but not identical to the model order provided by the Fund under SRP Section 11.3. - On September 30, 2003, the D.C. Superior Court denied Dr. “M”’s motion for a QDRO on the ground that the Fund is immune from garnishment proceedings. - On December 8, 2005, the D.C. Court of Appeals affirmed the denial, without prejudice to reconsideration by the Superior Court in light of additional documentation submitted by Dr. “M” for the first time on appeal. - The Fund provided the Superior Court with an aide-mémoire stating its views on immunity and the scope of Section 11.3 and noting: “The IMFAT is the proper forum for resolving [Ms. ‘M’]’s complaint about the scope of Section 11.3 of the SRP, because only the IMFAT has jurisdiction to grant a remedy to [Ms. ‘M’] as against the SRP or the IMF.” - On June 21, 2006, the D.C. Superior Court issued a “Memorandum and Order Denying Petitioner’s Motion for Reconsideration of Proposed QDR Order Against the IMF,” reaffirming its decision on immunity, and simultaneously issued a “Qualified Domestic Relations Order Directed to [Mr. ‘N’]” which required Mr. “N” to direct that past-due child support obligations be paid from his future Fund pension payments. The June 21, 2006 Order provides, in pertinent part: - “. . . in accordance with Section 11.3 of the Plan, [Mr. “N”] as soon as may reasonably be done following the issuance of this Order, shall irrevocably direct in writing to the Secretary of the Administration Committee of the Plan that, if as and when they become payable, a portion of [his] benefits, that is 16  /3 percent of each monthly payment, shall be paid to [Dr. “M”], the Alternate Payee, from the Plan and from the Supplemental Retirement Benefits Plan, to the extent that implementation requires payment through it, in a amount equal to $71,905.81 in U.S. Dollars . . . .” - The court observed that Mr. “N” “. . . has made no effort to fulfill his Court-ordered obligations to support his child. Indeed, [“Mr. “N”] appears to have left the jurisdiction and is attempting to avoid the legal process of this Court by absconding from the United States.” ### Judicial proceedings in Finland - Dr. “M” initiated enforcement proceedings in Finland in 1999. On May 25, 2001, the Supreme Court of Finland ordered that two judgments of the German Court of Darmstadt, dated July 20, 1994 and December 19, 1994, awarding child support and legal expenses, are “in force in Finland without separate confirmation” and are “ordered to be enforced.” - The Finnish Supreme Court concluded there was no indication that Ms. “M” had transferred her receivables to the German authorities. - Execution commenced against shares owned by Mr. “N” in a company in Finland, but was stayed for two weeks in December 2001 to allow Mr. “N” to file a claim contesting execution based on an alleged prior payment pursuant to a D.C. Superior Court order of August 10, 1999. - Mr. “N” filed a claim in the Turku District Court contesting the German Orders on grounds including objections to paternity determination and Applicants’ standing, and demanding reimbursement of amounts obtained by Applicants in Washington, D.C.; Applicants assert the Turku Local Court rejected that claim on December 14, 2004, but did not provide supporting documentation to the Tribunal. - Applicants maintain that execution in Finland is impossible because “the only assets owned by [Mr. ‘N’ in Finland] are completely pledged to Nordia Bank, Finland.” Respondent states that “[i]t is not clear whether any execution of the German judgments has occurred in Finland.” None of the Finnish court orders appears to refer to Mr. “N”’s Fund pension benefits. ### Proceedings before the Administration Committee of the Staff Retirement Plan (SRP) - Applicants made three requests, in 1999, 2002, and 2003, to the Administration Committee to have the German Orders of 1991, 1994, 1995 and 2003 given effect under Section 11.3 of the Plan. Each request was denied, resulting in the present Application before the Administrative Tribunal. - Section 11.3 of the Plan (quoted in full in the record) provides that a participant or retired participant may direct that benefits payable during life be paid to former spouses or children and sets limits when payable to children at 16/3 percent of the benefit payable to the participant or retired participant, with procedural provisions for requests by alternate payees and for withholding payments pending resolution. - On September 15, 1999, Dr. “M” made her first request to the Administration Committee, enclosing documents including a certified copy of Mr. “N”’s recognition of paternity of January 14, 1991; the German Orders of 1991, 1994, and 1995; the D.C. Superior Court Order registering the German Orders pursuant to UIFSA; and Mr. “N”’s letter of October 25, 1993 to the Darmstadt Local Court stating he “did not recognize any part of these false claims.” *JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M"), IMF Administrative Tribunal Reports, Vol. V.* ### 55. Shortly thereafter, on September 24, 1999, a member of the Fund’s ### Judgment No. 2006-6 — Requests by Dr. “M” under SRP Section 11.3 (1999–2003) ### Legal Department response to Dr. “M” (September 24, 1999) - Legal Representative to the SRP Administration Committee advised that the court orders presented would not be effective with respect to the SRP or any pension payments made by the SRP because the SRP has “non-alienation” provisions that prohibit diverting pension payments from a retiree to satisfy a retiree’s debt obligations. - The Legal Representative stated that payments for support of a former spouse or a child may be allowed under specified circumstances, but only when the support payments are pursuant to a legal obligation arising from a marital relationship evidenced by a court order or decree (reference to Section 11.3 of the SRP). - Conclusion communicated: based upon information available, Dr. “M” would not qualify as a spouse or former spouse under the SRP provisions; therefore, there would be no basis for the Fund to act favorably on her request. - The communication was copied to the Secretary of the Administration Committee and to Mr. “N”. ### Dr. “M”’s challenge of the Fund’s interpretation (October 1, 1999) - Dr. “M” challenged the Fund’s interpretation of Section 11.3 and the legality of the “marital relationship” requirement, arguing: - The court orders entitle the child itself to payment, not the mother or father or a “spouse”; thus the child is the “protected class” with respect to child support. - The SRP should not distinguish between children born within marriage and those born out of wedlock; such a distinction may conflict with human rights and constitutional provisions (example cited: Article 6 para. 5 of the German Grundgesetz). - Dr. “M” provided detailed analysis of Section 11.3 language and referenced Staff Bulletin No. 99/11 (May 4, 1999) regarding wage garnishment orders accepted from an individual having custody of the child. ### Amendment of SRP Section 11.3 (December 27, 2001) - The IMF Executive Board amended Section 11.3 of the Plan to authorize the Administration Committee to permit payment of a portion of a Fund retiree’s pension for child support: - New authorized language: “. . . pursuant to a legal obligation arising from a marital relationship or pursuant to a legal obligation to make child support payments” (emphasis supplied). - Effect: effectively abolished the distinction between a child born within a marriage or out of wedlock for purposes of Section 11.3. ### Applicants’ 2002 request to the Administration Committee - January 31, 2002: Dr. “M” submitted a second request to give effect to the identical court orders that had been the subject of her 1999 request, noting the change in Fund policy. - March 18, 2002: Secretary of the Administration Committee responded, enclosing the amended Section 11.3, the Rules of the Administration Committee, and a “model request” to guide preparation. - Key excerpt from the model request: - The model request asked the Plan to pay to the parent or guardian a portion of pension benefits “in the amount of ................, not to exceed 16-2/3% of the benefits payable to [NAME OF PARTICIPANT OR RETIREE] for support payments to all children.” - The model request required attachment of an authenticated copy of the relevant decree or order and stated that at least thirty (30) working days must have expired since issuance of the court order without submission by the participant of a direction to the Plan. - Model court order (QDRO-style) language provided to inquirers (record unclear whether provided to Dr. “M”): - Identifies the Alternate Payee and the right to a portion of benefits; requires participant to direct the Secretary of the Administration Committee in writing that a portion of benefits, including applicable costs of living supplements, be paid to the Alternate Payee in a described amount or percentage. ### Dr. “M”’s March–May 2002 submissions and Fund responses - March 20, 2002: Dr. “M” resubmitted her January 31, 2002 request using the model request and referenced a D.C. Superior Court Order of April 30, 2002 calculating total child support owed pursuant to German Orders as U.S. $71,905.81, to be paid by Mr. “N” and disbursed “as [Dr. “M”] shall direct.” - May 21, 2002: Secretary informed Dr. “M” that the “order you submitted” did not meet SRP Section 11.3 requirements for two primary reasons: - The order was for “past due amounts” because Ms. “M” had attained the age of eighteen by the time of the 2002 request, so it was not a “prospective” payment. - The order did not meet the requirement for a “court order affecting pension payments” because it did not order the pensioner to direct the SRP to make payments on behalf of the child. - May 22–23, 2002: Dr. “M” argued that Mr. “N” was evading service of a new complaint/court order specifying prospective support and questioned whether past-due judgments may be given effect when delay was intentionally or negligently caused by a staff member, retiree, or IMF administration. - Secretary reiterated that the Plan would not make payments beyond the date specified in the order; no pension plan, to his knowledge, provides for payment of past debts. He cited Section 11.3 and Rules requiring the order to specify that the participant is required to direct the Plan to make payments from future benefits. - June 14, 2002: Secretary (after further legal consultation) replied: - Amendments allowing payment for children born out of wedlock did not take effect until December 27, 2001; the enabling amendments apply only prospectively from the effective date. - No valid request complying with Plan and Rules had been submitted. - The court order submitted indicated child support due until the child reached eighteen; since she was over eighteen, there was no continuing obligation and unpaid amounts are debts, not prospective obligations. - Under Section 11.1, the Plan is prohibited from making payments to discharge the debts of a participant. ### Applicants’ 2003 request and Administration Committee action - February 6, 2003: Dr. “M” submitted a third request enclosing a new Local Court of Frankfurt/Germany order against Mr. “N” for child support in the amount of €227,03 per month, requesting deduction from Mr. “N”’s pension. - Fund Legal Department advised the Secretary that the 2003 order contained the necessary elements to start Section 11.3 consideration, despite not specifying pension payments or imposing an obligation on the pensioner to direct payment out of his pension. - Administration Committee minutes summary: although the order did not comply with the form of model QDROs, it contained necessary elements to initiate a Section 11.3 review. - February 26, 2003: Pursuant to Rule 1(b) of the Administration Committee’s Rules under Section 11.3, the Administration Committee transmitted Dr. “M”’s request to Mr. “N” for his comments. *IMF Administrative Tribunal, Judgment No. 2006-6* ### 70. On April 10, 2003, Mr. “N” responded to the Committee with a ### imfat-5 - 70. ### Mr. “N”’s objections to Applicants’ request to give effect to the 2003 German Order - On April 10, 2003, Mr. “N” submitted a lengthy statement objecting to Applicants’ request to give effect to the 2003 German Order. - Principal contentions by Mr. “N”: - The 2003 German Order was preliminary and not a final and binding order as required by the Administration Committee Rules under Section 11.3. - The matter was the subject of active litigation in three countries. - He had no notice of the hearing that led to the issuance of the order and had not been served in respect of any German proceedings. - The Frankfurt Court did not have jurisdiction over him. - Dr. “M” did not have standing to seek enforcement of the German Orders of 1991, 1994, and 1995. - The 2003 German Order had no legal effect in Finland, his domicile, because Applicants had not obtained recognition and enforcement of the order in Finland. - He is not the father of Ms. “M” and was disputing paternity in various ongoing legal proceedings; under Finnish law he has no child support obligation to Ms. “M” absent a determination of paternity by a competent Finnish court. - The 2003 German Order did not on its face impose any obligation on him “to execute and deliver papers to the Committee.” - Mr. “N” also submitted documents including excerpts from the record of the Helsinki Court of Appeals, an excerpt from a Turku District Court document, the Paternity Act of Finland, and a certificate from the Lapland Local Register Office stating no record of his being the father of Ms. “M”. ### Applicants’ response and assertions regarding finality and recognition - On May 19, 2003, Dr. “M” responded by email to Mr. “N”’s objections: - Stated Mr. “N” had never revoked his acknowledgement of paternity and could not do so. - Maintained the German Orders of 1991, 1994, and 1995 had been recognized in Finland by the Helsinki Court of Second Instance. - Described the December 6, 2002/January 20, 2003 order as a prolongation of previous orders because Ms. “M” was continuing school. - Indicated the German court rejected Mr. “N”’s attempts to reopen the case in Germany. - Argued the provisional order was effectively “final” as no legal remedies had been filed by Mr. “N” and provisional measures were necessary to avoid indefinite delay while the child is raised or pursues education. ### Secretary’s Memorandum and Administration Committee recommendation - On May 30, 2003, the Secretary of the Administration Committee transmitted a Memorandum summarizing parties’ submissions and recommending denial of the request to give effect to the 2003 Order. - Key findings and recommendations in the Memorandum: - Informal consultation with a German lawyer indicated the Order was in the nature of a preliminary injunction and did not grant enforceable title under German law. - At least two criteria for a valid order appeared unmet: - A question regarding the finality of the German Order. - Two courts claimed jurisdiction, and it was unclear that the Helsinki court had recognized the German Order, creating potential conflict in court findings. - Recommendation: reject Dr. “M”’s request because the German Order is not final and recognition by the Helsinki Court of First Instance had not been documented. ### Administration Committee decision of June 16, 2003 - On June 16, 2003, the Committee notified Dr. “M” (copied to Mr. “N”) that it had rejected the request to give effect to the 2003 German Order. - Committee conclusions communicated to Dr. “M”: - The finality of the German Order had not been established to the Committee’s satisfaction. - Unresolved jurisdictional questions existed between the German and Helsinki courts. - Recognition of the German Order by the Helsinki Court of First Instance had not been documented. - For these reasons the Committee rejected the request and would take no action on the Order until the parties resolved these points. - The Committee noted neither the Fund nor the Committee had authority to negotiate a lump sum settlement with Mr. [“N”] on behalf of Ms. “M”. ### Administrative review channel and Applicants’ Request for Review - The case falls under Section 11.3 of the Staff Retirement Plan (SRP) and the channel of administrative review established in 1999 by the SRP Administration Committee. - Relevant procedural rules and timeframes preserved exactly as cited: - Rule 1(b) of the Administration Committee Rules under Section 11.3: participant or retired participant allowed at least thirty (30) working days to consent or object to a spouse’s request; failure to submit a direction within thirty (30) working days permits the Committee to accept a spouse’s request. - Rule VIII of the Rules of Procedure of the SRP Administration Committee: Application for Review may be submitted within ninety (90) days after receipt of a Decision. - Rule X of the Rules of Procedure of the SRP Administration Committee: exhaustion of administrative review deemed met when (a) three months have elapsed since an Application for review was submitted and results not notified; or (b) the Committee has notified the Applicant of the results of any review; or (c) conditions of Article V, Section 3(c) of the Statute have been met. - Procedural history: - Applicants’ 1999 and 2002 requests were dismissed at threshold stages (1999 by the Legal Representative; 2002 by the Secretary), not considered by the Administration Committee as a whole; admissibility of those decisions addressed separately. - Only the Committee’s June 16, 2003 decision proceeded through the SRP Administration Committee channel of administrative review. - On July 28, 2003, Dr. “M” requested review of the June 16, 2003 Decision under Rule VIII and submitted additional documentation: - May 25, 2001 Order of the Supreme Court of Finland stating the 1994 German Order was “in force in Finland without separate confirmation and [is] to be enforced here”. - “Protocol of unsuccessful service of the new court decisions . . . referring to child support for [Ms. “M”] from the age of 18” at Mr. “N”’s Washington, D.C. address. - May 22, 2002 order of the Darmstadt Regional Court denying Mr. “N”’s appeal and ordering him to pay costs. - Four orders of the Frankfurt and Darmstadt Courts directing Mr. “N” to pay court costs and attorney fees (one relating to the 1991 German Order; another relating to the 1994 and 1995 German Orders). - Dr. “M” requested deduction of these awards from Mr. “N”’s pension benefits as “child support owed for special purposes.” - The Administration Committee notified Mr. “N” of the Request for Review and provided him with the new documentation; Mr. “N” responded with memoranda in September and October 2003 and voluminous documentation. - Mr. “N” reiterated that since Ms. “M” had reached majority she could no longer make a request under Section 11.3, and repeated objections to the 2003 German Order. - Mr. “N” submitted documents including pleadings filed in Turku Local Court in March and October 2002 contesting execution of the 1994 German Order, related Turku Execution Office documents, D.C. court orders related to writs of attachment appeals, excerpt from the September 30, 2003 Order of the D.C. Superior Court denying Applicants’ motion for a QDRO, Finnish law on Child Maintenance, and reports from German child support cases. ### SRP Administration Committee Secretary’s January 27, 2004 Memorandum and observations - On January 27, 2004, the Secretary summarized the parties’ arguments and submissions on the Request for Review and observed: - Dr. “M” did not provide evidence that Finnish courts had recognized the 2003 German Order; according to Mr. “N” this question remained unsettled. - The “protocol of unsuccessful service” submitted by Dr. “M” did not precisely identify the document being served. - The orders submitted by Dr. “M” awarding costs and attorney fees ordered payments of past-due amounts that could not be given effect under Section 11.3. - Many of Mr. “N”’s submissions appeared irrelevant, but they demonstrated the existence of an ongoing dispute between the parties on the child support question. *IMF Administrative Tribunal, Judgment No. 2006-6 (Ms. “M” and Dr. “M”)* ### 79. On February 20, 2004, the Administration Committee met to address ### imfat-5 - 79. On February 20, 2004, the Administration Committee met to address ### Administration Committee proceedings (February 20–25, 2004) - On February 20, 2004, the Administration Committee met to address Dr. “M”’s Request for Review. The Legal Representative reiterated points from the Secretary’s Memorandum of January 27, 2004, and distinguished Applicants’ case from the earlier case of Mr. “P” (No. 2). - The Committee recorded that a bona fide dispute still existed and that the parties had not adequately addressed the Committee’s concerns. - By letter of February 25, 2004, the Secretary of the Administration Committee notified Dr. “M” (with copy to Mr. “N”) that the Committee sustained its decision to deny Applicants’ request to give effect to the 2003 German Order, stating: - The Committee noted a Finnish decision provided by Applicants that ordered enforcement against Mr. [“N”] of certain German court orders but not the later Order to which Applicants sought effect under Section 11.3, which postdates the Finnish decision. - The Committee noted the 2003 Order does not require Mr. [“N”] to direct the Committee to make payments out of his pension benefits, nor does it mention payment from his pension benefits, and thus the Committee had no basis to determine the court intended the Order to override the general rule against alienation of benefits in Section 11.1 of the Plan. - Considering Mr. [“N”]’s continuing objections, the Committee determined the additional information did not establish the finality and binding nature of the Order and that a bona fide dispute remained regarding the efficacy and meaning of the Order. - The Committee rejected the request and, consistent with the Section 11.3 rules, stated it would take no action on the Order and informed Applicants the decision may be appealed to the Administrative Tribunal of the International Monetary Fund within three months of the date of the letter. - On May 18, 2004, Applicants filed their Application with the Administrative Tribunal. ### Applicants’ principal contentions (summary) - Applicants argued “exceptional circumstances” justify waiver of the time limit under Article VI, Section 3 of the Tribunal’s Statute to challenge the 1999 Legal Representative decision refusing to give effect to the German Orders of 1991, 1994, and 1995. - Applicants alleged gross injustice in the 1999 denial based on a “discriminatory” marital relationship condition later abolished after intervention by the German Ministry of Justice and that Applicants were not informed of the possibility of challenging the decision in the Tribunal. - Dr. “M” claimed standing to enforce the German Orders of 1991, 1994, and 1995 because German authorities, having paid a small portion of awarded support to Ms. “M”, transferred their outstanding claim against Mr. “N” to Dr. “M”. - Applicants contended the Fund never informed Dr. “M” about a Qualified Domestic Relations Order (“QDRO”) and that a QDRO is not mentioned in the IMF rules made known to Applicants; Dr. “M” attempted to obtain a QDRO from a U.S. court on advice of an acquaintance. - Applicants challenged Rule 9 of the Rules of the Administration Committee under SRP Section 11.3 as unreasonably favoring retirement security over enforcement of child support, arguing undue hardship because court judgments are typically “for the collection of past due amounts” and final judgments may take years in international proceedings or when the defendant evades obligations. - Applicants contended the Administration Committee erroneously assumed a child support order of the child’s home country must be recognized by the participant’s home country to be valid for IMF purposes; Applicants asserted this requirement is not in the SRP Rules and would make timely application nearly impossible. - Applicants relied on the Supreme Court of Finland’s holding that the 1994 German Order is “in force in Finland without separate confirmation and [is] to be enforced here,” and argued the 2003 German Order is a prolongation of previous orders because Ms. “M” is attending school. - Applicants asserted Mr. “N” frustrated attempts to effect service in Finland and Washington, D.C., so proper service was not effected; however, Applicants claimed notice to Mr. “N” was not required for issuance of the 2003 German Order. - Applicants contended the 2003 German Order is final because no legal remedies or appeal have been sought by Mr. “N”; they described it as an emergency injunction that secures child support pending a later final judgment and sought pension payments: - payment from [Mr. “N”]’s pension of €227,03 monthly “or whatever the Local Court of Frankfurt/Main orders in the future (‘retroactively’ or not),” - payment from [Mr. “N”]’s pension of U.S. $71,905.81 (child support), U.S. $30,137.63 (U.S.-attorney fees) and U.S. $27,904.81 (interest)—in monthly installments of $1,500. - Applicants argued the Administration Committee wrongly required a court order to expressly “direct the Committee to make payments out of [the participant’s] pension benefits” because German courts would not issue such wording; Applicants asserted German law does not permit courts to condemn payment out of specific assets and that garnishment of Mr. “N”’s pension is excluded under German rules of civil procedure due to IMF immunity. - Applicants claimed the German court correctly assumed jurisdiction because the daughter is a resident of Germany. - Applicants denied Mr. “N” ever revoked his acknowledgement of paternity and argued that issue could only be decided by national courts, not the IMF. - Applicants disputed the Fund’s contention that they could pursue Mr. “N”’s other assets, asserting Mr. “N” was almost bankrupt, had an unseizable Washington, D.C. house, had apartment shares pledged to NORDEA-Bank of Finland, and had ensured no more bank accounts existed to attach. - Applicants alleged the Fund committed “grave legal and factual errors” and developed bias in favor of a former staff member. - Applicants reserved claim for damages if the IMF-Administration intentionally or negligently prevented timely exercise of rights or enforcement of the child support claim. - Applicants denied deliberately withholding information from the IMF and alleged the Fund withheld information useful to obtaining child support. ### Respondent’s principal contentions (summary) - Respondent argued Applicants’ challenge to the Fund’s 1999 decision is time-barred because it was not initiated within three months of the Administration Committee’s decision but was brought “almost 5 years later.” - Respondent rejected Applicants’ assertions of gross injustice and lack of notice as insufficient to establish “exceptional circumstances” under Article VI, Section 3 to waive the statute of limitations. - If the Tribunal waived the time limit, Respondent argued the Tribunal would have to review the regulatory basis for the 1999 decision (the “marital relationship” requirement in Section 11.3 at the time), which constituted a reasonable exercise of the Executive Board’s discretion in 1999. - Respondent maintained that, on the merits, the 1999 requests would have been denied for the same defects of efficacy, finality, and meaning as the 2003 request; the 1991, 1994, and 1995 German Orders do not order payment from Mr. “N”’s pension and could not have done so because he was not retired at those times, making them judgment debts not enforceable against his pension pursuant to Section 11.1 of the Plan. - Respondent defended the policy of allowing only prospective payments under Section 11.3 as reflecting the Fund’s judgment that the Plan’s primary purpose of providing secure pensions outweighs enforcement of past-due alimony and support awards, noting consistency with practices of the World Bank, the United Nations Joint Staff Pension Fund, most U.S. public sector pension plans, and every U.S. private sector pension plan qualified under the U.S. Internal Revenue Code. - As to the 2003 request, Respondent asserted the Committee properly applied Section 11.3 and determined submissions gave rise to a bona fide dispute as to efficacy, finality, or meaning of the 2003 German Order; Applicants failed to rebut Mr. “N”’s objections that the German court lacked jurisdiction, that he had no notice of the hearing, that Dr. “M” lacked standing, that the order had no legal effect in Finland, that the order was preliminary and not final, and that the matter was subject to ongoing litigation in three countries. - Respondent emphasized Dr. “M” bore the burden of proof and failed to satisfy it; the Committee gave Dr. “M” full opportunity to respond. - Respondent argued the Administration Committee, composed of laypersons, lacks expertise to decide contested issues of German and Finnish family law, conflicts of laws, and recognition of foreign judgments, and that it should not engage in quasi-judicial application of such law; the Executive Board intended that the Committee not “look behind the form of the court order” and, in case of doubt, reject the request to maintain the anti-alienation rule. - Respondent stated Applicants did not provide any court order explicitly obliging the participant to direct the Administration Committee to make payments out of his pension benefits, which Respondent characterized as an essential requirement under Section 11.3; absence of such an order alone justified denial of all requests. - Respondent interpreted Section 11.3 to require a court order that obliges the participant to direct the Administration Committee to give effect to the order requiring payments from his pension benefits, leaving no doubt the court intended a transfer of pension benefits—an order “akin” to a Qualified Domestic Relations Order under U.S. law and conforming to model order elements provided to Applicants. - Respondent noted that in the course of litigation no court had issued a final order against Mr. “N”’s pension and that one U.S. court specifically decided not to award payment from [Mr. “N”]’s pension. - Respondent rejected the claim that Fund immunity would prevent a German court from ordering Mr. “N” to direct a pension payment, stating Fund immunity from garnishment suits is irrelevant to whether a QDRO should be issued; the D.C. Superior Court’s September 30, 2003 decision denying Dr. “M”’s motion for a QDRO was correct insofar as it concluded the Fund, including the SRP, is immune from garnishment suits for enforcement of judgment debts and that Section 11.3 allows the Plan to voluntarily give effect solely to prospective court orders for alimony and child support. *IMF Administrative Tribunal Reports, Vol. V — JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M")* ### 13. To the extent that Applicants are implying that German law ### JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M") — Consideration of Issues and Admissibility ### Applicants’ assertion about German law and execution against pension - Applicants imply that German law prevents German courts from ordering execution of their judgment against Mr. “N”’s Fund pension; the Administration Committee held that such a limitation, if operative, would only confirm the correctness of the Committee’s denial of their request. - The Tribunal contrasts this with the case of Mr. “P” (No. 2): if the Tribunal affirms the Administration Committee’s decision, Dr. “M” would not be left indefinitely without a remedy because Applicants have recourse in national courts against Mr. “N”’s other assets. - The Tribunal records that Dr. “M”’s assertions that execution against such other assets is not possible are contrary to the facts and the law; specific enforcement targets include: - the Washington, D.C. bank accounts into which Mr. “N”’s pension is paid; and - the Washington, D.C. house that remains in the name of Mr. “N”. ### Procedural deficiencies in Applicants’ submissions to the Administration Committee - At the time the Administration Committee was considering the three decisions, Dr. “M” and Mr. “N” failed to provide the Committee with a number of highly relevant documents and other information. ### Principal issues the Tribunal must decide - The Tribunal identifies the following principal issues: - (1) Are Applicants’ challenges to the denials of their 1999 and 2002 requests admissible for review by the Tribunal? - (2) Was the “marital relationship” requirement of SRP Section 11.3, later revised, dispositive of Applicants’ requests to give effect to court-ordered support for Ms. “M” relating to the period pre-dating the revision? - (3) In denying Applicants’ requests to give effect to each of the court orders at issue, did the Fund err in interpreting SRP Section 11.3 to require that the court order either specify that support is to be paid from the retiree’s Fund pension benefits or direct the retiree to submit a direction to the Administration Committee to that effect? - (4) Is the Fund’s interpretation of the requirements of Rule 9 of the Administration Committee Rules under Section 11.3, to preclude giving effect to court orders for support payments that were due prior to the dates of Applicants’ requests, a necessary one? - (5) Had the Administration Committee reviewed Applicants’ 1999 and 2002 requests pursuant to its Rules under Section 11.3, should it properly have denied them on the ground that a bona fide dispute existed as to the efficacy, finality, or meaning of the German Orders of 1991, 1994, and 1995? - (6) As to the Applicants’ 2003 request, did the Administration Committee err in concluding that a bona fide dispute existed as to the efficacy, finality, or meaning of the 2003 German Order, and that therefore it did not satisfy the conditions prescribed by the Rules of the Administration Committee under Section 11.3 for giving effect to a support order? ### Admissibility of Applicants’ challenges to the 1999 and 2002 decisions - Timeline and prior actions: - Applicants made three requests to the Administration Committee in 1999, 2002, and 2003. - It is not disputed that with respect to the 2003 request (relating to post-majority support), Applicants exhausted applicable channels of administrative review and filed a timely Application with the Tribunal. - The Tribunal must decide whether the challenges to the denials of 1999 and 2002 requests (relating to support for Ms. “M” prior to reaching age eighteen) are admissible. - 1999 request: - Rejected by a member of the Fund’s Legal Department acting as Legal Representative to the Administration Committee on the basis that the request did not meet the threshold requirement then prescribed by Section 11.3 that court orders arise from a “marital relationship.” - The Legal Representative’s decision was notified simultaneously to the Secretary of the Administration Committee, Dr. “M”, and Mr. “N”. - Dr. “M” responded by letter of October 1, 1999, reiterating her request and questioning the denial; the Fund apparently offered no further response. - Revision of SRP Section 11.3: - The “marital relationship” requirement was abolished following engagement by the Fund’s management; the amended SRP Section 11.3 was adopted by the IMF Executive Board on December 27, 2001. - 2002 request: - On January 31, 2002, approximately one month following the revision and before its announcement to staff by Staff Bulletin No. 02/5 (February 26, 2002), Dr. “M” renewed her request to the Administration Committee in light of the change. - On her Request form of March 20, 2002, she noted the 2002 request was intended as a “confirmation and repetition” of the 1999 request and sought to give effect to the same court orders submitted in 1999. - On May 21, 2002, the Secretary of the Administration Committee denied Dr. “M”’s request on grounds that: - (1) because Ms. “M” had reached the age of eighteen (as of January 9, 2002) the court orders at issue were no longer for current or prospective support; and - (2) the order was not a “court order affecting pension payments.” - Dr. “M” challenged the substance of that decision by email exchanges and on May 24, 2002 inquired about judicial review, asking in part: “If the two of us (including your legal department) do not agree, what are the legal remedies for [Ms. “M”]? Is the Administrative Court of the IMF available to us? To whom are you reporting?” - The final response recorded was an email of June 14, 2002 from the Secretary, after “further research and consultation with the Fund’s Legal Department,” affirming that payments pursuant to a direction or accepted request shall be prospective only and asserting that the recent Plan amendment would apply only to support obligations from the amendment’s effective date; no further recourse through the Fund was identified by the Secretary. - Applicants’ timeliness arguments: - Applicants concede their challenge to the denial of the 1999 request was not timely filed with the Tribunal but maintain that “exceptional circumstances” excuse the delay. - The timeliness of challenge to the 2002 denial was not expressly raised or briefed; Respondent initially asserted only the 1999 and 2003 decisions were challenged, but later communications indicate the Fund treated the 2002 denial as part of Applicants’ complaint before the IMFAT. - The Tribunal concludes Applicants placed before the Tribunal—and the Fund has responded to—a challenge to the 2002 decision, particularly on interpretation of Rule 9 (the “prospective payments” rule). - 2003 request: - Applicants exhausted the channels of review and filed their Application within three months of the Administration Committee’s February 25, 2004 Decision on Review. - The Fund contends only the denial of the 2003 request is properly before the Tribunal (the January 20, 2003 Order of the Frankfurt Court for maintenance of Ms. “M” following her eighteenth birthday). - Tribunal conclusion on admissibility: - The Tribunal concludes that Applicants’ challenges to all three contested decisions (1999, 2002, and 2003 denials) are admissible for review by the Tribunal. ### Exhaustion of channels of administrative review (Article V, Section 1) - Legal standard: - Article V, Section 1 of the Tribunal’s Statute: “When the Fund has established channels of administrative review for the settlement of disputes, an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review.” - Factual findings and Tribunal reasoning: - Respondent framed admissibility principally as a waiver of the statute of limitations under Article VI and did not separately contest exhaustion per Article V. - The Tribunal notes uncertainty whether any administrative review was offered by the Administration Committee or exhausted by Applicants with respect to the 1999 and 2002 decisions but concludes Applicants should not bear responsibility for the course of events. - In 1999 and 2002, the Legal Representative and the Secretary made threshold assessments that Applicants’ requests did not meet minimum criteria under Section 11.3 and accordingly the Administration Committee did not proceed to consider the requests pursuant to its Rules. - Consequently, the Committee did not follow the procedure prescribed by Rule 1(b) of the Rules of the Administration Committee under Section 11.3 (including transmission to Mr. “N” for his views and specified timelines for response). - For the 2003 request, by contrast, the Legal Department advised that the court order at issue “contained the necessary elements to initiate the Section 11.3 review”; the 2003 request was processed accordingly and Applicants were advised of their right to tribunal review upon denial. - The Tribunal emphasizes the twin purposes of administrative review: “providing opportunities for resolution of the dispute and for building a detailed record in the event of subsequent adjudication.” The Tribunal has an extensive documentary record from the Administration Committee proceedings on the 2003 request, and documentation and argument presented in 2003 related also to the earlier requests. - Mr. “N” had notice of Tribunal proceedings and declined the opportunity to participate as an Intervenor after receiving Application and Answer. - Tribunal conclusion on exhaustion: - The Tribunal concludes Applicants’ challenges to the denial of their 1999 and 2002 requests are not debarred on the ground of failure to exhaust channels of administrative review as prescribed by Article V, Section 1 of the Statute. - The Tribunal therefore proceeds to consider whether Applicants have established “exceptional circumstances” to overcome the time bar imposed by Article VI. ### Waiver of the statute of limitations (beginning) - The Tribunal cites Article VI of the Statute, which provides in pertinent part: - “A R T I C L E V I 1. An application challenging the legality of an individual decision shall not be admissible if filed with the Tribunal more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision.” _The Tribunal (JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M"))_ ### 2. An application challenging the legality of a regulatory decision shall ### imfat-5 - 2. An application challenging the legality of a regulatory decision shall ### Statute of limitations and waiver authority - An application challenging the legality of a regulatory decision is not admissible if filed with the Tribunal more than three months after the announcement or effective date of the decision, whichever is later. - The illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging the legality of an individual decision taken pursuant to such regulatory decision. - In exceptional circumstances, the Tribunal may decide at any time to waive the time limits prescribed under Articles V or VI (as applicable) to receive an application that would otherwise be inadmissible. - The Commentary on the Statute (Report of the Executive Board, p. 26) explains Article VI, Section 3 as permitting waiver for situations such as “extensive mission travel, prolonged illness, or other exigent personal circumstances,” and requires a finding that the delay was justified under the circumstances. ### Factual and procedural chronology and timing issues - Applicants challenged decisions from 1999 and 2002; the Tribunal confronted a delay of more than four years between the contested decision and filing. - In a prior case, Ms. “Z”, the Tribunal granted a two-month waiver of the statutory time limit after exigent personal circumstances were brought to the Tribunal’s attention prior to filing (IMFAT Judgment No. 2005-4 (December 30, 2005), note 1). - The Tribunal emphasized adherence to time limits and that “exceptional circumstances” should not be readily found (see Estate of Mr. “D”, para. 104; Mr. “O”, para. 50). ### Parties’ positions on waiver and notice - Applicants’ principal arguments for waiver: - (1) They suffered “gross injustice” by the 1999 decision denying their request on the basis of the “marital relationship” requirement of Section 11.3 then in force. - (2) They were not informed by the Fund of the possibility of recourse to the Administrative Tribunal. - Respondent’s counterarguments: - The Fund has no obligation to notify potential applicants of the right to review in the Tribunal. - Dr. “M” was a sophisticated actor who knowingly forwent Tribunal review and sought a legislative remedy to amend SRP Section 11.3 through the Executive Board. - In 1999, prior to the Tribunal’s 2001 Judgment in Mr. “P” (No. 2), the Fund operated under a good faith belief that the Tribunal did not have jurisdiction ratione personæ over persons such as the Applicants. - Applicants had other avenues of relief, including seeking enforcement of support orders against assets of Mr. “N” other than his Fund pension benefits. ### Tribunal’s analysis and findings on notice, waiver, and exceptional circumstances - The Tribunal found no evidence that Applicants knowingly relinquished their right to judicial review. - The Tribunal noted precedent that lack of individual notification does not generally excuse failure to comply with procedural requirements, but recognized circumstances in which the Fund has an obligation to provide timely and sufficient notice of review procedures (citing Estate of Mr. “D”, para. 128). - Factors supporting an obligation to notify include that the Applicants were non-staff members who could not be assumed to know internal recourse procedures; in 1999 and 2002 the Fund provided no information on recourse procedures to the Applicants. - The Tribunal concluded that, in the circumstances of this case, absence of notice by the Fund meant Applicants should not have been expected to know the Fund’s procedures for bringing a challenge in the Tribunal. - The Tribunal therefore found that there were “exceptional circumstances” justifying waiver of the time limits prescribed under Article VI of its Statute. - Rationale summarized by the Tribunal: - First, Applicants are non-staff members and could not be expected to know the recourse procedures of the Fund. - Second, Applicants’ conduct shows prompt attention to legal requirements where notified rather than casual disregard. - Third, internal recourse procedures appeared uncertain to both the Fund and the Applicants, compounded by the summary procedures used in responding to the 1999 and 2002 requests. - Fourth, there is no evidence Applicants knowingly relinquished Tribunal review in favor of legislative remedy, which proved incomplete. ### Review of SRP Section 11.3 (“marital relationship” requirement) and standard of scrutiny - The Tribunal addressed whether the “marital relationship” requirement of SRP Section 11.3, as in force in 1999, was dispositive of Applicants’ requests to give effect to court-ordered support for Ms. “M” for the period predating its revision. - The Tribunal emphasized that the question is the validity of the prior Plan provision (SRP Section 11.3 (1999 Revision)), not retroactive application of the revised provision. - Applicants contested the legality of the “marital relationship” requirement as representing impermissible discrimination against children born out of wedlock; Dr. “M” argued that German Orders entitled the child itself to payment and that the Fund’s internal rules must be interpreted to treat the child as the beneficiary, not limited to “spouse or former spouse.” - Respondent maintained that the “marital relationship” requirement was a reasonable exercise of the Executive Board’s discretion and implemented a legitimate classification differentiating spouses (or former spouses) of Fund retirees from all other persons seeking enforcement of court orders against pension benefits. - The Tribunal acknowledged the narrow scope of review applicable to regulatory decisions and deference to the Fund’s managerial and administrative discretion, especially for Executive Board policy decisions, citing the Commentary on the Statute (Report of the Executive Board, p. 19). - Nonetheless, because Applicants alleged violation of a universally recognized human right (discrimination against children born out of wedlock), the Tribunal held that the “very nature of this grave complaint requires a greater degree of scrutiny over the Fund’s exercise of its discretion.” *IMF Administrative Tribunal Reports, VOL. V, Judgment No. 2006-6 (Ms. "M" and Dr. "M").* ### 118. A review of the history of the relevant provision of the Plan will ### History and Legal Analysis of SRP Section 11.3 Amendments ### Evolution of SRP Section 11.3 (1995–2001) - 1995: IMF amended Section 11.3 of the SRP to authorize the SRP Administration Committee, under specified conditions, to give effect to domestic relations orders upon a voluntary direction of the retired participant. (Staff Bulletin No. 95/4 (March 16, 1995)). The 1995 amendment limited directions to those “to satisfy the marital obligations of a divorce or legal separation.” - May 26, 1999: Executive Board approved a further amendment to Section 11.3, announced by Staff Bulletin No. 99/12 (June 9, 1999), which “authoriz[ed] the Administration Committee of the SRP, under prescribed conditions, to approve a request from a spouse or former spouse of a participant to give effect to a court order requiring that spouse or child support payments be made from the SRP benefits otherwise payable to the retired participant.” The 1999 amendment allowed the affected spouse or former spouse to request enforcement in lieu of a participant’s voluntary direction. - December 27, 2001: Executive Board adopted an amendment to Section 11.3 authorizing the Administration Committee, under certain conditions, to give effect to a court order for child support regardless of whether a child is born within a marriage or out of wedlock. Announced by Staff Bulletin No. 02/5 (February 26, 2002), designed to “. . . place on an equal footing the treatment of children born in and out of wedlock by separating payments for child support from those for spousal support.” - Current text (SRP Section 11.3 (2001 Revision)) excerpts preserved: - “11.3 Notwithstanding the provisions set forth in Section 11.1, a participant or retired participant may, pursuant to a legal obligation arising from a marital relationship or pursuant to a legal obligation to make child support payments, evidenced by an order of a court or by a settlement agreement incorporated into a court order, direct in writing to the Secretary of the Administration Committee that a benefit that would otherwise be payable to him during his life under the Plan be paid to one or more former spouses or a current spouse from whom there is a decree of legal separation, his child or children, who are under 22 years of age, or the court approved guardian of such child or children.” - “(b) In the event that a participant or retired participant fails to submit a timely direction in compliance with the court order to the Secretary of the Administration Committee, under such rules and conditions of acceptance as are prescribed by the Administration Committee, a spouse or former spouse or a child or children, or parents or guardians acting on their behalf, of such participant or retired participant who is a party to the court order or orders may request that the Administration Committee give effect to such court order or orders and treat the request in the same manner as if it were a direction from such participant or a retired participant.” ### Legal standards and nondiscrimination principles applied - Tribunal Statute: Article III requires the Tribunal to “apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.” Commentary: such principles “are so widely accepted and well-established in different legal systems that they are regarded as generally applicable to all decisions taken by international organizations, including the Fund.” - Distinction between equality and nondiscrimination: - Mr. “F” (IMFAT Judgment No. 2005-1) recognized a difference between a general principle of equality of treatment and a principle of nondiscrimination implicating “universally accepted principles of human rights.” - ILOAT (In re Mr. I. M. B., Judgment No. 2120 (2002)) cited Article 26 of the International Covenant on Civil and Political Rights regarding equal protection and prohibition of discrimination on grounds including “birth or other status.” - Fund’s internal nondiscrimination instruments: - Rule N-2: “Subject to Rule N-1 above, the employment, classification, promotion and assignment of persons on the staff of the Fund shall be made without discriminating against any person because of sex, race, creed, or nationality. Adopted as N-1 September 25, 1946, amended June 22, 1979.” - Discrimination Policy (July 3, 2003) defines discrimination in the Fund as differences in treatment that: - “is made on the basis of personal characteristics such as age, creed, ethnicity, gender, nationality, race, or sexual orientation;” - “is unrelated to an employee’s work-related capabilities, qualifications and experience—this may include factors such as disabilities or medical conditions that do not prevent the employee from performing her or his duties;” - “is irrelevant to the application of Fund policies; and” - “has an adverse impact on the individual’s employment, successful job performance, career opportunities, compensation, or other terms and conditions of employment.” ### Tribunal precedents and standards for reviewing classifications - Precedent holdings: - Mr. “R” and Ms. “G”: “It is a well-established principle of international administrative law that the rule of nondiscrimination imposes a substantive limit on the exercise of discretionary authority in both the policy-making and administrative functions of an international organization.” (Mr. “R”, para. 30) - Standard for assessing classification schemes (Mr. “R”, para. 47): - Whether the decision “could . . . have been taken on the basis of facts accurately gathered and properly weighed.” (Lindsey, para. 12) - Whether there is a “rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” (Mould, para. 26) - Tribunal may consider the stated reasons for differential benefits and assess whether allocation to categories is rationally related to those purposes. - Administrative-law constraint on discretion: discretionary decisions may be overturned if shown to be “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Report of the Executive Board, p. 19) ### Respondent’s rationale and balancing of interests - Respondent’s core contentions: - The “marital relationship” requirement was a reasonable exercise of the Executive Board’s discretion implementing a classification scheme differentiating spouses (or former spouses) from other persons seeking enforcement against a retiree’s pension (including custodial parents of children born out of wedlock). - The 1999 amendment was a limited exception to the anti-alienation rule set out in Section 11.1, which “serves the Plan’s paramount purpose of securing retirement income for the staff members of the Plan.” (Staff Bulletin No. 99/12, para. 7) - Preferential treatment of spouses and former spouses is “consistent with the policy behind all spousal rights and benefits under pension plans, which is that the spouse is presumed to have uniquely contributed to the financial security of the marital unit, through work in the home or otherwise, and thus, has a justified expectation of sharing in the participant’s pension income, even after the participant’s death or a divorce.” - Such classification does not violate “any general principles of international administrative law that are so widely accepted and well-established in different legal systems that they would be regarded as generally applicable to all decisions taken by the Fund.” Respondent notes that preferences for married persons historically are common in pension schemes, though some amendments have created limited rights for unmarried persons. - Administrative record rationale: - Fund documents noted that “[p]ension rights represent a significant portion of the value of the marital estate and are subject to division in the event of a divorce.” (Report from the Secretary of the Administration Committee to the Members of the Pension Committee of January 24, 1995, para. 2.) - Respondent characterizes the Plan provisions as “a deliberate and reasoned balancing of interests in requiring former staff members to comply with their family obligations as imposed by law, with the Plan’s primary purpose of providing secure pension to retired staff.” - Respondent’s position on disparate effect: - Any disparate effect with respect to children born out of wedlock was “merely consequential to a legitimate classification based on marital status.” *IMF Administrative Tribunal, JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M")* ### 130. The Tribunal observes, however, that the disparate—and discrimi- ### imfat-5 - 130. The Tribunal observes, however, that the disparate—and discrimi- ### Disparate and discriminatory effect on children born out of wedlock - The Tribunal observes that the disparate—and discriminatory—effect with respect to children born out of wedlock followed directly from the intended classification by marital status and by treating child support awards as incidental to a dissolution of marriage and payment of spousal support. - The Fund’s rationale of preferential treatment of spouses does not support the resulting disparity in the treatment of children, because a court-ordered entitlement to child support essentially rests with the child. - The Tribunal emphasizes that the child is innocent of the marital—or non-marital—relationship of his or her parents and, as an innocent human being, is entitled to the human right of being free from impermissible discrimination. - The Tribunal found no evidence that, in devising the applicable provisions, the Fund gave consideration to the effect on children born out of wedlock, notwithstanding the stated purpose of the 1999 amendment to address the “concerns that SRP participants could use the Fund’s immunities to avoid being compelled to fulfill their legitimate spouse and child support obligations.” (Staff Bulletin No. 99/12 (June 9, 1999).) ### Decisionmaking process, international standards, and human rights - The Tribunal recognizes that “. . . the care with which a reform has been studied” may be taken into account in giving deference to a regulatory decision (Ms. “G”, para. 77; Mr. “R”, paras. 63-64). - The Fund’s apparent failure to consider the effect of the marital/non-marital classification on children born out of wedlock is incompatible with contemporary standards of human rights that obtained in 1999 and in 2006. - The Administrative Tribunal concluded the challenged rule was fundamentally defective for failing to make adequate provisions for children born out of wedlock, inconsistent with international standards of nondiscrimination that the Fund professes. - The Universal Declaration of Human Rights, Article 25, states that “[a]ll children, whether born in or out of wedlock, shall enjoy the same social protection.” ### Central legal question: interpretation of SRP Section 11.3 - Central question: whether, to be given effect pursuant to SRP Section 11.3, a court order for spousal or child support must either: - specify that the support payments be made from the retiree’s Fund pension benefits, or - require the retiree to direct the SRP to that effect. - It was undisputed that none of the court orders Applicants sought to have given effect under the SRP (the 1991, 1994, or 1995 German Orders relating to Ms. “M”’s support as a minor child, nor the 2003 German Order for post-majority support) referred to Mr. “N”’s Fund pension benefits. - The Fund denied Applicants’ requests on the basis that the orders did not refer to Fund pension benefits and thus did not meet the Fund’s interpretation of Section 11.3; the Fund’s Secretary stated orders should “specify that the participant is required to direct the Plan to make the support payments out of his future benefits.” ### SRP anti-alienation rule, QDRO analogy, and U.S. legal context - SRP Section 11.1 provides: - “11.1 No benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, seizure or charge, . . . nor shall any such benefit be in any manner liable for or subject to the debts, contracts, liabilities, engagements or torts of the person entitled to such benefit, except as may be specifically provided in the Plan; . . .” - The IMF Staff Retirement Plan is a tax-qualified retirement plan, classified as a “governmental plan” under U.S. law (26 U.S.C. § 414 (d)), and thus not subject to anti-alienation provisions applicable to private-employer tax-qualified plans; nonetheless, many governmental plans, including the IMF’s, adopted anti-alienation provisions to preserve retirement income security. - Under U.S. law for private-employer plans, an exception for child or spousal support exists via a Qualified Domestic Relations Order (“QDRO”), defined in 26 U.S.C. § 414(p)(1)(A)(i); under that framework, support payments may be made from pension benefits only if the court order specifically refers to payment from pension benefits. ### Purpose and legislative history of Section 11.3; policy tensions - Respondent maintained SRP Section 11.3 was drafted to create a voluntary exception “akin” to the QDRO exception; the 1995 Report recommended Section 11.3 with limitations “analogous to those set out in [U.S. Internal Revenue Code] § 414(p)(1), (3) and (4).” - The Tribunal identified two competing factors in interpreting Section 11.3: - The anti-alienation objective embodied in Section 11.1 to safeguard the Plan’s primary purpose of providing retirement income security. - The competing policy, embodied in Section 11.3 and its Rules, of “encourag[ing] enforcement of orders for family support and division of marital property,” and the Fund’s expressed aim to prevent retirees from using immunities to avoid family support obligations. - The Fund’s legislative history contains language favoring narrow construction (e.g., 1999 Report describing Section 11.3(b) as authorizing the Administration Committee to approve requests to give effect to a court order “requiring that spouse or child support payments be made from the SRP benefits payable to the participant”), but other materials show a broader policy purpose: to enforce family support obligations and treat children equally regardless of birth within or out of wedlock (e.g., “Proposed Revision of SRP Section 11.3 Concerning Support Payments for Children, Including Those Born Out of Wedlock” EBAP/01/140 (December 19, 2001)). ### Tribunal’s holding on interpretation and outcome - The Tribunal concludes that SRP Section 11.3 admits a broader interpretation than Respondent urged and holds that the fact that the court orders at issue do not by their terms direct that support payments be made from Mr. “N”’s Fund pension benefits does not debar their being given effect pursuant to SRP Section 11.3. - In assessing reasonableness, the Tribunal balanced the anti-alienation purpose of Section 11.1 against the Fund’s policy to encourage enforcement of family support orders; the latter counsels a more inclusive interpretation taking into account the effect on spouses and children seeking court-ordered support. *IMF Administrative Tribunal, Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 130–144.* ### 145. Similarly, in notifying the 1999 amendment to the staff of the Fund, ### imfat-5 - 145 ### Interpretation of Section 11.3 of the SRP - Section 11.3, as amended in 2001, provides that a participant or retired participant may "direct in writing to the Secretary of the Administration Committee that a benefit that would otherwise be payable to him during his life under the Plan be paid to one or more former spouses or a current spouse from whom there is a decree of legal separation, his child or children, who are under 22 years of age, or the court approved guardian of such child or children." - Section 11.3(b) (added in 1999 and amended in 2001) permits a spouse, former spouse, child, parents or guardians who are parties to a court order to request that the Administration Committee give effect to such court order if the participant fails to submit a timely direction. - The Tribunal reads "legal obligation ... to make child support payments" as the obligation that must be evidenced by a court order; the word "pursuant" restricts directions to those made in the presence of a court-ordered obligation but does not turn the obligation into a requirement that the court order itself mandate submission of a direction. - The phrase "may ... direct" indicates that directions by a participant need not be court-mandated in all cases. ### Legislative history, purpose, and scope - The 1999 Report and Staff Bulletin No. 99/12 (June 9, 1999) described the 1999 amendment as allowing a spouse or former spouse who is a party to the court proceedings to request that the Administration Committee give effect to a court order or approved settlement agreement which requires that spouse or child support payments be made from SRP benefits. (Emphasis supplied in source.) - The 1995 Report and Staff Bulletin No. 96/9 (May 15, 1996) similarly described Section 11.3 as permitting directions "to satisfy the marital obligations of a divorce." - The primary policy motivation identified for adopting Section 11.3 was to address abuse of the Fund’s immunity from process in U.S. jurisdictions around Washington, D.C., by enabling enforcement of family support and division of marital property through mechanisms similar to Qualified Domestic Relations Orders ("QDROs") in U.S. law. - The Fund intended Section 11.3 to permit retirees to give effect to divorce orders from courts other than those in the United States and to take into account diverse legal systems in interpreting the provision. ### Application to orders that do not expressly reference SRP benefits - The Tribunal holds that the text of Section 11.3 does not necessarily preclude giving effect to court orders that do not expressly provide that payment be made from a retiree’s Fund pension benefits. - What is important is submission of a valid court order entitling the applicant to support arising out of a marital or parental relationship; the precise terms in which the obligation is cast are not dispositive. - The Tribunal may weigh factors including: - the foreign residence of the child and her guardian; - asserted and apparent difficulty or inability to obtain a court order in the foreign jurisdiction (Germany in this case) that specifies pension redirection in the manner of a QDRO; - difficulty or inability of applicants to move effectively against other assets of the retiree; - bad faith or evasion by the retiree of paternal responsibilities. - These factors support giving effect, in the circumstances of the Applicants’ case, to German court orders that do not expressly require that support payments be made from the retiree’s Fund pension. ### Jurisdictional and immunity issues (Germany and other jurisdictions) - Applicants argued that German law does not permit a court decision condemning a defendant to pay child support out of specific assets, trusts, accounts, salaries etc., that German courts do not accept litigants’ drafting directions for orders, and that garnishment of Mr. "N"’s pension is excluded under German rules of civil procedure due to the IMF’s immunity. - Respondent argued that without an order requiring that SRP benefits be directed to an alternate payee, there is nothing to which the Administration Committee can give effect, and that it would be unjust and contrary to the purpose of Section 11.3 to give effect to German orders that could not have required payment from the pension under German law. - The Tribunal noted that national courts may be reluctant to specify payment from the IMF Staff Retirement Plan because they are aware of the Fund’s immunity from legal process, and pointed to the D.C. Superior Court’s initial rejection of Applicants’ suit on immunity grounds as illustrative of this reluctance. ### Anti-alienation rule, caps, and limits - The Plan’s anti-alienation rule is a factor favoring limitation of Section 11.3’s scope. - The Plan places a cap of "16/3 percent" on all child support payments (as stated in Section 11.3(a)(ii) in the source text). - The retiree retains rights to question the efficacy, finality or meaning of foreign court orders under the Rules of the Administration Committee under Section 11.3; pension security cannot be undermined because the Plan itself places the stated cap on child support payments. ### Prospective payments rule (Rule 9) and past-due obligations - The Tribunal addressed whether the Administration Committee’s interpretation of Rule 9 to preclude giving effect to court orders for support payments that were due prior to the dates of applicants’ requests was necessary. - The Legal Representative to the SRP Administration Committee (in 1999) and the Secretary of the Administration Committee (in 2002) rejected Applicants’ requests on the ground that: - court orders presented might have been effective for garnishment of wages but were not effective with respect to the SRP or any pension payments because the SRP has "non-alienation" provisions that prohibit diverting pension payments to discharge retiree debts; and - child support obligations that are past due and no longer prospective constitute debts that the Plan is prohibited from discharging under Section 11.1. - The Tribunal recognized the need to address how Rule 9 should operate when giving effect to orders that do not specify pension benefits and that may relate to past-due support obligations. ### Tribunal holdings and conclusions - The Tribunal holds: - Section 11.3 does not necessarily exclude court orders that do not expressly provide that payment be made from a retiree’s Fund pension benefits. - The legislative history and text permit a broader interpretation in appropriate circumstances; accordingly, in the Applicants’ case the Tribunal found it permissible to give effect to German court orders that do not expressly require payments from the retiree’s Fund pension. - Absent a clear requirement in Section 11.3 that the court order expressly reference the Fund’s Staff Retirement Plan, the Tribunal declines to read such a requirement into the provision. - The Administration Committee and the Tribunal may weigh contextual factors (foreign residence, difficulty obtaining specific orders, inability to pursue other assets, retiree’s conduct) in deciding to give effect to such orders. - The Tribunal will next address the operation of the "prospective payments" rule (Rule 9) in cases of orders that lack express pension references. *International Monetary Fund Administrative Tribunal, Judgment No. 2006-6 (Ms. "M" and Dr. "M")* ### 162. It may be observed that because, in Respondent’s view, orders that ### imfat-5 - 162. It may be observed that because, in Respondent’s view, orders that ### Interaction of Section 11.1 (anti-alienation) and Section 11.3 (exception) - Section 11.1 provides that no benefit under the Plan shall be ". . . in any manner liable for or subject to the debts . . . of the person entitled to such benefit, except as may be specifically provided in the Plan . . . ." - Section 11.3 is expressly an exception to Section 11.1: it begins “Notwithstanding the provisions set forth in Section 11.1 . . . .” - The Fund’s Model Order contemplates that a portion of pension benefits may be paid to an alternate payee “if as and when they become payable” to the participant. - The Tribunal frames the interpretive question: whether the Committee’s Rule that payments be “prospective only” means support payments must be taken from prospective pension payments even if based on a past obligation. ### Prospective-payment rule (Rule 9) and Fund policy rationale - Rule 9 (Rules of the Administration Committee under Section 11.3) provides in relevant part: - “Payments pursuant to a direction or an accepted request shall be prospective only; no payment will be made for amounts payable or due prior to the later of the date that the direction or request was received or the effective date referred to in the direction. . . .” - Respondent’s justification for limiting to prospective payments: - Protects the Plan’s primary purpose of providing secure pensions to retired staff. - Asserts the public interest in collection of debts is not as strong as the anti-alienation rule and enforcement of ongoing support. - Notes other enforcement means exist through national courts, including attachment of other assets and incarceration. - Contrast in Fund practice: - For wages, the Fund’s policy gives effect to garnishment orders for past-due amounts (Staff Bulletin No. 99/11). ### Tribunal’s assessment of competing policies and legislative history - The prospective-payment limitation was explicitly set out in the Report of the Secretary of the Administration Committee of January 24, 1995: “[p]ayments pursuant to a direction made under it would be prospective only. This would be the case even if the court order or decree on which the direction is based had been obtained earlier.” (1995 Report, para. 10.) - The Rules under Section 11.3 were adopted by the Administration Committee pursuant to SRP Section 7.2 (c). - The Tribunal recognizes two competing policies implemented by Section 11.3 and its Rules: - Safeguarding pension security (anti-alienation). - Encouraging enforcement of orders for family support and division of marital property (as emphasized in Mr. “P” (No. 2), para. 151). - Drafters balanced these by incorporating limits (including the prospective-payment rule) and by allowing garnishment/withholding from wages for past-due amounts subject to limits (Staff Bulletin No. 99/11; Staff Bulletin No. 99/12). ### Facts and orders at issue - D.C. Superior Court June 21, 2006 Order required Mr. “N” to direct 16/3 percent of all future SRP payments to Dr. “M” until U.S. $71,905.81 in past due child support payments has been met. - The D.C. court construed Rule 9’s “prospective payments” provision to mean that “. . . the SRP will not attempt to retrieve money that has already been paid to the Respondent [i.e. Mr. ‘N’] and redirect it to the beneficiary of the court order.” - German court orders dated 1991, 1994, and 1995 relate to support of Ms. “M” before reaching the age of eighteen; these do not expressly specify recourse against Mr. “N”’s pension. - Applicants submitted requests to the Fund on September 15, 1999; Fund rejected Applicants’ requests in 1999 and 2002 at threshold stage (by the Administration Committee’s Legal Representative and Secretary), so the Committee did not review the Orders for compliance with Section 11.3 Rules. ### Tribunal’s interpretive conclusion on prospective payments - The Tribunal concludes that a court order that expressly specifies that support payments be made from future pension payments—even if the liability arose in the past—is consistent with the requirements of Section 11.3. - Rationale: - This interpretation aligns with the anti-alienation principle while providing an incentive for alternate payees to exhaust other assets first. - Paying 16/3 percent of prospective pension benefits will normally stagger repayment of past-due sums over years; capturing present value is more advantageous than staggered payment, and prospective payments terminate at the retiree’s death. - When a court on the facts determines it appropriate to order payment from future benefits of past liabilities, the Fund should not look behind that court determination. - An alternate payee should not be penalized for time spent pursuing other assets or for obtaining an order “akin to” a QDRO. ### Application to German Orders and timing consequences - If only the German 1991, 1994, and 1995 Orders were relied upon (in absence of the June 21, 2006 D.C. Order), the Tribunal considers those Orders sufficient to entitle Applicants to require deductions from Mr. “N”’s future pension payments even though they do not expressly specify recourse against the pension. - In that circumstance the prospective payments rule would operate to give effect to those Orders only from the date of Applicants’ September 15, 1999 request to the Fund. - The Tribunal sees a reasonable distinction between: - Orders that expressly specify payments from future pension payments (e.g., the 2006 QDRO), and - Orders that require only that support be paid by the parent to the dependent child (e.g., the German Orders). ### Procedural question on denial of 1999 and 2002 requests and standard for review - The Tribunal treats the Fund’s threshold denials of the 1999 and 2002 requests as erroneous in result because the denials prevented Committee review under Section 11.3 Rules. - Rule 2 of the Administration Committee Rules under SRP Section 11.3 sets criteria under which a court order is presumed valid in absence of an objection: - (A) Validity by reason that: - (1) a reasonable method of notification employed and reasonable opportunity to be heard afforded; and - (2) judgment rendered by a court of competent jurisdiction and in accordance with such state requirements as necessary for valid exercise of power by the court; - (B) product of fair proceedings; - (C) final and binding on the parties; and - (D) does not conflict and is not inconsistent with any other valid court order or decree. - If a party objects, the Committee will assess the same criteria and will not review merits between parties. - Rule 1(b) and Rule 1(c) limit Committee action where a “bona fide dispute” exists about application, interpretation, effectiveness, finality or validity of an order: - If satisfied a bona fide dispute exists, no action shall be taken unless and until resolved to Committee’s satisfaction; any withheld payment may be placed in escrow. - The Committee will not interpret agreements or resolve ambiguous orders or disputes as to efficacy, finality or meaning; activation and payment may be suspended until settled in the judgment of the Administration Committee. ### Tribunal’s remedial approach and authority - The Tribunal’s authority to resolve the underlying dispute is predicated upon a finding of error in the contested decision of the Administration Committee; if the Committee did not properly apply SRP Section 11.3 or the Rules, the Tribunal may invoke remedial authority. - In the present case the Tribunal finds error not in a final Committee decision on the merits but in the Fund’s threshold determinations that prevented Committee consideration; the appropriate remedy is rescission of such threshold decisions and correction of their effects rather than remand. *Judgment No. 2006-6 (Ms. “M” and Dr. “M”), IMF Administrative Tribunal Reports, Vol. V.* ### 179. Respondent asserts that Applicants’ 1999 request would have been ### imfat-5 - 179. Respondent asserts that Applicants’ 1999 request would have been denied “because it suffered from the same defects of efficacy, finality and meaning as their [2003] request,” but does not elaborate on this assertion in light of the criteria prescribed in Rule 2. ### Administration Committee review and Respondent’s position - Respondent analogized objections to the 2003 German Order to the German Orders of 1991, 1994, and 1995 and suggested these give rise to a bona fide dispute under the Administration Committee Rules. (para. 179) - Respondent did not elaborate its position with respect to the 1991, 1994, and 1995 Orders beyond the analogy to the 2003 German Order. (para. 180) - The Administration Committee’s decision of February 25, 2004 was based on objections raised by Mr. “N” with respect to the 2003 German Order, which the record indicates are equally applicable to the 1991, 1994, and 1995 Orders. (para. 180) ### Mr. “N”’s principal objections (as appearing in the record) - Three principal arguments raised by Mr. “N”: - (1) He contests paternity of Ms. “M”. (para. 181) - (2) He claims that the support orders must be recognized by the country of domicile of the retiree in order to be given effect under SRP Section 11.3. (para. 181) - (3) He maintains that Finnish law applies to the question of paternity and any support obligations. (para. 181) - Additional specific objections related to the 1991, 1994, and 1995 Orders in the record: - Mr. “N” asserted before the Administration Committee that he has not been served in respect of any German legal proceedings. (para. 181; footnote 94) - Mr. “N” objected in various legal proceedings to the Darmstadt Court’s jurisdiction with respect to the German Orders of 1991, 1994, and 1995. (para. 181) - Mr. “N” asserted that Ms. “M”’s child support claims had been transferred to the German authorities that had paid child support to Ms. “M”, and therefore Applicants lack standing to seek their enforcement. (para. 181) ### Application of the Administration Committee Rules (Rule 2) to the German Orders - Rule 2(C): orders must be “final and binding on the parties” to be given effect under SRP Section 11.3. (para. 183) - The Tribunal finds Respondent’s assertion that the 1991, 1994, and 1995 German Orders raised the same finality issue as the 2003 Order to be without basis. (para. 183) - The 2003 Order was by its terms an “interim order,” whereas the 1991, 1994, and 1995 Orders, taken together, “would appear to evidence a final and enforceable obligation.” (para. 183) - The 2003 Order itself references the July 20, 1994 Order of the Darmstadt Local Court, stating that maintenance of Ms. “M” before reaching age eighteen had been “finally judged.” (para. 183) - Several years had elapsed since issuance of the German Orders; Mr. “N”’s failure to timely appeal evidenced their final nature, and his appeal was denied on May 22, 2002 as untimely. (para. 183) - Rule 2(D): order must “not conflict and is not inconsistent with any other valid court order or decree.” (para. 185) - The record contains no evidence of a valid order inconsistent or in conflict with the German Orders under review, and Respondent does not claim otherwise. (para. 185) - Rule 2(A): validity determined by notification/opportunity to be heard and by rendering court’s jurisdiction (text quoted in para. 186) - The courts of Germany, Finland and Washington, D.C. rejected Mr. “N”’s objections to the validity of the German Orders; the record and other evidence establish the validity of the German Orders. (para. 186) ### Evidence on notification, opportunity to be heard, and jurisdiction - Notification and opportunity to be heard: - The German Orders of 1991 and 1994 stated that Mr. “N” was properly summoned; the 1994 Order noted he was “absent without a valid excuse.” (para. 187) - Mr. “N”’s letter of October 25, 1993 to the Darmstadt Local Court (submitted with the 1999 request) stated he objected to the legal proceedings and “[did] not recognize[ ] any part of these false claims,” undermining his claim of having no notice. (para. 187) - The Darmstadt Regional Court by Order of May 22, 2002 rejected Mr. “N”’s appeal and held his allegations of procedural irregularities were in bad faith. (para. 187) - Personal jurisdiction: - The record does not indicate a substantial question as to the German Court’s personal jurisdiction based on evidence submitted to the Administration Committee; Mr. “N” did not appear before the German court to raise the objection and did not timely appeal. (para. 189) - The D.C. Superior Court held that the German Court had personal jurisdiction over Mr. “N”, noting he never claimed lack of personal jurisdiction at trial and had waived that defense; the Court found “nothing in the record to support the contention that the German courts lacked the jurisdiction to issue the Order at hand.” (para. 190, quoted text) ### Recognition and enforcement in other jurisdictions - D.C. Superior Court recognized and enforced the German Orders by Order of August 5, 1999, provided to the Administration Committee at the time of the 1999 request. (para. 191) - The Supreme Court of Finland ordered the German Orders to be enforced on May 25, 2001, rejecting Mr. “N”’s objections; earlier the Helsinki Court of Appeals had done so as well. (para. 191) - The recognition by courts of Finland and Washington, D.C. constituted compelling evidence of the validity of the German Orders under the Administration Committee Rules. (para. 191) - Subsequent litigation: Mr. “N” undertook appeals regarding execution proceedings in Washington, D.C.; the D.C. Court of Appeals denied his objections on December 8, 2005; D.C. courts characterized his motions as “repetitive,” “baseless,” “frivolous,” and “abusive.” (footnote 104) ### Paternity objections and the Tribunal’s conclusion on bona fide dispute - Record of paternity objections: - Mr. “N” asserted he is not the father of Ms. “M” and that the German courts improperly relied on his acknowledgment of paternity that he purportedly revoked in 1991, because it was fraudulently obtained by Dr. “M”. (para. 192) - Mr. “N” also argued that the Administration Committee may not give effect to an order unless the child support obligation has been established under the legal standard of the retiree’s country of domicile. (para. 192) - Administration Committee found an unresolved paternity issue in the record: the minutes of February 20, 2004 reflect concern “whether the 2003 German Order was ‘binding on the parties in light of the position of the retiree that . . . the question of paternity is unresolved and that the matter remains under litigation in Finnish court.’” (para. 193; quoted) - Tribunal’s assessment: - Staff Bulletin No. 02/5 (2001 revision) cautioned that the Administration Committee “. . . will not resolve disputes about parentage . . . .” (para. 194) - The Tribunal concluded Mr. “N”’s objections to paternity are manifestly in bad faith. (para. 194) - Evidence: Dr. “M” submitted with her 1999 request an acknowledgement of paternity issued on January 14, 1991 by the Magistrate of the Municipality of Darmstadt, signed by Mr. “N” and stating inter alia: “I know that the acknowledgment is irrevocable . . . .” (para. 194) - Mr. “N” chose not to appear before the German Court to assert defenses with respect to paternity and attempted to appeal years later when untimely; he did not submit evidence of any revocation of the acknowledgment. (para. 194) - A certificate from the Lapland Local Register Office showing no record in the Finnish Population Information System of Mr. “N”’s being the father of Ms. “M” is insufficient to raise a bona fide dispute. (para. 194) - Prior judicial findings on paternity objections: - The May 22, 2002 Order of the Darmstadt Regional Court rejected Mr. “N”’s challenge to paternity, stating the dispute was irrelevant after his prior acknowledgement and that his contradictory later stance was not cleared up; the court considered the dispute irrelevant in the context of evidence evaluation. (para. 195, quoted) - The enforcement orders of the Supreme Court of Finland and the D.C. Superior Court undermine Mr. “N”’s contention that the Orders were the result of fraud. (para. 195) *JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M"), IMF ADMINISTRATIVE TRIBUNAL REPORTS, VOL. V, paras. 179–195.* ### 196. Mr. “N”’s assertion that only a support obligation imposed under ### Mr. “N”’s assertion that only a support obligation imposed under the maintenance law of Finland, his asserted country of domicile, could be properly enforced against him ### Requirement of recognition by retiree’s country of domicile - There is no requirement under Section 11.3 and the Rules thereunder that an obligation to pay child support be established under the law of the retiree’s country of domicile. - The Administration Committee Rules do not provide that support orders must be recognized by the Fund retiree’s country of domicile. - The Fund’s policy of giving effect to family support orders is a voluntary undertaking protected by the Fund’s immunity from judicial process and is derived from SRP Section 11.3 and related Rules. - The Rules were expressly designed to apply to retired participants who ignore family support orders and avoid their effect by moving outside the area where the court had jurisdiction or where its orders would be given effect. - The governing consideration is that a child support order must be issued by a court of competent jurisdiction; recognition by the courts of the residence of a parent is not required. ### Administration Committee’s treatment of the domicile objection - The Administration Committee gave weight to Mr. “N”’s domicile-based objection with respect to the 2003 German Order; Respondent reiterated similar arguments about the Committee’s capacity to resolve contested issues of German and Finnish family law. - The Tribunal rejected the proposition that the domicile requirement is material per se to the adequacy of an order under Section 11.3 and the Rules thereunder. - The Tribunal recalled its approach in Mr. “P” (No. 2), treating the Fund’s internal law as the relevant forum policy when confronting multi-jurisdictional conflicts. ### Litigation in Finland and related procedural history - Applicants had a claim pending in a Finnish court seeking recognition and enforcement of the German Orders of 1991, 1994, and 1995 at the time of their 1999 request. - Mr. “N” actively contested the Finnish proceedings and filed two appeals. - The Supreme Court of Finland, by decision of May 25, 2001, ordered that the German Order of 1994 is “in force in Finland without separate confirmation and [is] . . . to be enforced here.” - Mr. “N” subsequently filed a claim in the Turku District Court challenging enforcement; Applicants asserted that Mr. “N”’s claim “has been rejected by the Local Court of Turku on December 14, 2004,” but did not provide supporting documentation to the Tribunal. - Respondent received two communications from Mr. “N” regarding litigation in Finland but informed him he should submit such communications directly to the Tribunal; Mr. “N” did not do so. - The record contains some uncertainty as to the current status of Finnish litigation, but the Tribunal found that those proceedings did not give rise to a bona fide dispute under the Administration Committee Rules. ### Substance and materiality of Mr. “N”’s objections - Mr. “N” asserted: (1) no child support obligation exists absent a paternity determination under Finnish law; (2) Dr. “M” was not the owner of the claims because they had been transferred to German authorities; (3) German proceedings were wrong due to insufficient contacts with Germany (challenge to personal jurisdiction); and (4) decisions were issued “unilaterally.” - Objections concerning Dr. “M”’s standing and the applicability of Finnish law were held not to be material in this case. - While jurisdiction and notice objections are generally relevant under the Rules, the ample evidence of the validity of the German Orders meant Mr. “N”’s assertions did not of themselves give rise to a bona fide dispute. - The Tribunal characterized Mr. “N”’s disputes over the German Orders of 1991, 1994, and 1995 as spurious and manifestly in bad faith; the Orders are valid and final. - Finnish courts, as far as the record reveals, have not questioned the validity of the German Orders; courts of the District of Columbia also recognized their validity. ### Applicants’ 2003 request and the 2003 German Order - On February 6, 2003, Applicants requested that the SRP Administration Committee give effect to the January 20, 2003 German Order against Mr. “N” to pay €227,03 monthly. - The 2003 German Order: - Is by its terms an “interim order.” - Confirms that Ms. “M” “is the illegitimate child of defendant, born on 1984-01-09.” - States that pursuant to the July 20, 1994 Order of the Darmstadt Court, “the maintenance for [Ms. ‘M’] until reaching the age of 18 has been finally judged.” - Provides that beyond age 18 Ms. “M” shall be paid a maintenance of €227,03 monthly effective from the date of the petition, i.e. April 30, 2002. - On June 16, 2003, the Administration Committee denied Applicants’ request on the grounds that “the finality of the German Order has not been established . . . . Moreover, it appears that there are unresolved jurisdictional questions with respect to the German and Helsinki courts; and recognition of the German Order by the Helsinki court of First Instance has not been documented.” - On February 25, 2004, the Committee confirmed the denial, noting among other matters that the Finnish decision provided by Applicants ordered enforcement of certain German court orders but not the postdating Order to which Applicants had requested effect under Section 11.3; the Committee concluded that “the additional information submitted by the parties did not establish the finality and binding nature of the Order, and that a bona fide dispute remained regarding the efficacy and meaning of the Order.” ### Tribunal’s assessment of the 2003 Order and Committee’s decision - The Tribunal found no bona fide dispute as to the validity of the 2003 Order; contentions raised by Mr. “N” in respect of the 2003 Order were essentially the same as those previously raised and no more persuasive. - The Tribunal addressed the Committee’s consideration of objections specific to the 2003 Order: lack of personal jurisdiction in Frankfurt, lack of proper notice to Mr. “N”, and that the Order was not final. - The Tribunal concluded that the 2003 German Order conforms to Rule 2(B) (the court order “is the product of fair proceedings”) and Rule 2(D) (the order “does not conflict and is not inconsistent with any other valid court order or decree”), since fairness was not at issue and there was no evidence of an inconsistent valid court order. - The remaining Rule 2 criteria, which were in dispute between the parties, were to be addressed further in the Tribunal’s analysis. *Judgment No. 2006-6 (Ms. "M" and Dr. "M"), IMF Administrative Tribunal Reports, Vol. V* ### 214. Under Rule 2(A), the order must be: ### JUDGMENT NO. 2006-6 (MS. "M" AND DR. "M") ### Notice and service - Applicants acknowledge that Mr. “N” has not been given notice of the proceedings in question but contend notice was not required for the proceedings resulting in the 2003 provisional German Order. - Evidence shows notice was not given to Mr. “N”, but attempts to notify him were frustrated by his efforts to evade service. - Dr. “M”’s affidavit of non-service records that when she attempted to serve Mr. “N” at his Washington, D.C. home, “female occupant stated subject not known at address.” - Attempts to serve Mr. “N” at the Finnish address he provided failed, as did efforts to establish his whereabouts in Finland through Finnish authorities and Mr. “N”’s brother. - The Darmstadt Court determined Mr. “N” made allegations of procedural irregularities in bad faith; D.C. Superior Court issued contempt orders and concluded Mr. “N” avoided compliance by filing baseless motions and departing Washington on false pretenses. - Tribunal conclusion: Mr. “N”’s evasion of service was tantamount to notice and satisfied Rule 2(A)(1) requirements of “a reasonable method of notification” and “a reasonable opportunity to be heard.” ### Jurisdiction and validity of foreign orders - Rule 2(A)(2) requirement: “the judgment has been rendered by a court of competent jurisdiction . . . and in accordance with such requirements of the state as are necessary for the valid exercise of power by the court;” - Administration Committee concern: uncertainty because “two courts are involved and claim jurisdiction. It is not clear that the Helsinki court has recognized the German Order.” - Proceedings in the Supreme Court of Finland and lower Finnish courts provided evidence of validity for the German Orders of 1991, 1994, and 1995, which were recognized despite Mr. “N”’s objections. - U.S. litigation resulted in recognition and enforcement by the D.C. Superior Court as evidenced by Orders of August 5, 1999, April 30, 2002, and June 21, 2006. - Record does not reflect a substantial question regarding personal jurisdiction of the Frankfurt Court for the 2003 German Order; Mr. “N” provided no evidence substantiating such a challenge. - Mr. “N” did not appear before the Administrative Tribunal to assert and substantiate objections; Tribunal notes diminished credibility due to his conduct and German court’s finding of bad faith in appellate arguments. - Tribunal view: Mr. “N”’s unsubstantiated objection to the German Court’s jurisdiction did not give rise to a bona fide dispute as to the validity of the 2003 German Order. ### Finality of the 2003 German Order and amounts at issue - Rule 2(C) requires that a support order be “final and binding on the parties” to be given effect pursuant to Section 11.3. - The German Order of 2003 is by its terms an “interim order.” - Dr. “M”’s position before the Administration Committee: - The provisional Order is in itself “final” because Mr. “N” did not seek legal remedy or appeal. - Such provisional orders secure child support before final judgment and operate like an emergency injunction, to be later replaced or modified “retroactively” by final judgment. - Final judgment delayed due to Mr. “N”’s evasion of service; underlying lawsuit remains pending with a hearing scheduled for January 30, 2007. - The Order confirms that Ms. “M” “is the illegitimate child of defendant, born on 1984-01-09” and states the “[d]efendant shall be obligated to pay to petitioner every month . . . a maintenance sum of 227,03 Euro as of 2002-04-30.” - Questions remain regarding support due to Ms. “M” as a dependent student after attaining age eighteen; the Frankfurt Court’s determination of the precise amount of support and other issues is to be resolved at the January 30, 2007 hearing. - Tribunal accepts the Administration Committee’s conclusion that the 2003 German Order was not a final judgment, but recognizes that Applicants are entitled by force of the Order to a minimum monthly payment in Euros, the precise amount to await Frankfurt Court determination. ### Tribunal decision and orders - The Administrative Tribunal of the International Monetary Fund unanimously decides: 1. A 16/3 percent deduction shall be made from prospective monthly pension payments to Mr. “N”, which shall be paid over to the Applicants, in order to discharge the total sum owing them by reason of the Darmstadt Court Orders of 1991, 1994, and 1995, as confirmed and totalled by the Superior Court of the District of Columbia in its Orders of April 30, 2002, November 25, 2002, and June 21, 2006. That sum is $71,905.81 plus $27,904.81 in interest, plus interest at the prevailing rate compounded quarterly on the total sum from November 25, 2002 until the date on which each monthly pension payment is made. 2. For the period from February 6, 2003 (the date on which Applicants filed their third request with the Administration Committee) until Ms. “M” attained the age of 22 (the age limit prescribed in Section 11.3) the amount accrued by the sum of 227,03 Euros monthly under the January 20, 2003 Order of the Frankfurt Court, with interest at the prevailing rate compounded quarterly, shall be added to the total liability of Mr. “N” and paid out as prescribed in paragraph 1 of this Decision. If and when a future order of the Frankfurt Court is received by the Administration Committee, which adjusts the Euro sum due, the liability of Mr. “N” shall be altered to take account of that Order. 3. Applicants reserve claims for damages alleging the Fund intentionally or negligently prevented timely exercise of child support rights; Tribunal does not deal with that claim because Applicants do not adequately set forth its elements. 4. Applicants requested $30,137.63 in attorney’s fees incurred in U.S. courts; Tribunal is not authorized to award fees incurred in the District of Columbia courts. Because the Application before the Tribunal is well-founded, the Tribunal orders that the reasonable costs incurred by the Applicants be borne by the Fund, pursuant to Article XIV, Section 4 of the Tribunal’s Statute, and invites Applicants to submit a statement of the legal costs incurred in pursuing their remedies in the Fund and before the Tribunal. ### Procedural and evidentiary observations - Tribunal relied on record of proceedings, including submissions of the retiree, in deciding SRP Section 11.3 request. - Tribunal noted Mr. “N”’s conduct diminished his credibility and affected assessment of his objections. *Decision of the Administrative Tribunal of the International Monetary Fund, Washington, D.C., November 29, 2006.* ### Section 11.3 ### Section 11.3 ### Staff Retirement Plan — SRP Section 11.3 and Domestic Relations Orders - Provisions for giving effect to domestic relations orders under the Staff Retirement Plan (SRP) and the evolution of the Fund’s internal law are addressed in Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 57, 87, 118–122, 136–148 and note 43; pp. 164, 168, 188, 200–202, 209–216. - A domestic relations order need not specify that support payments be made from the retiree’s Fund pension payments for it to be given effect under the Staff Retirement Plan. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 134–158; pp. 208–219.) - The “marital relationship” requirement of SRP Section 11.3 was found not to be a reasonable exercise of discretionary authority because of its disparate effect on children born out of wedlock. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 129–130; pp. 205–207.) - Evolution of internal practice and Administration Committee records were considered as part of the evidence in SRP proceedings. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 20, 98; pp. 152, 192–193.) ### Discrimination, Equal Treatment, and Human Rights Constraints - The Tribunal found that nondiscrimination and universally accepted principles of human rights impose constraints on the Fund’s exercise of discretionary authority. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 125–127; pp. 203–205.) - Children born out of wedlock are entitled to the human right of being free from impermissible discrimination; in failing to make adequate provision for such children, the former SRP Section 11.3 was incompatible with international standards of nondiscrimination. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 130, 132–133; pp. 207–208.) - The Fund’s written law sets forth a principle of nondiscrimination within the context of the employment relationship; the Tribunal distinguished general equality-of-treatment principles from nondiscrimination implicating universal human-rights principles. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 124, 126–127; pp. 202–205.) - The Fund’s Discrimination Policy (2003) is cited in relation to these findings. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 126; p. 204.) ### Discretionary Authority and Scope of Tribunal Review - The extent of discretionary authority in conversion of fixed-term appointments is analyzed and distinguished from separation for unsatisfactory performance. (Judgment No. 2006-2 (Ms. “T”), paras. 37, 53; pp. 85, 91. Judgment No. 2006-3 (Ms. “U”), paras. 37, 53; pp. 107, 113.) - The Tribunal exercises a greater degree of scrutiny where a contested decision allegedly violated a universally recognized human right. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 117; p. 200.) - The Tribunal found an instance where discretionary authority was used to create a “hybrid” appointment of limited duration carrying certain benefits of regular employment. (Judgment No. 2006-1 (Mr. “O”), paras. 86–97; pp. 62–66.) - Conditioning reemployment with the Fund, following service with the Executive Board, on agreement to take an appointment of limited duration was considered an exercise of discretion; Tribunal deference to Executive Board decisions is at its height. (Judgment No. 2006-1 (Mr. “O”), paras. 86–97; pp. 62–66. Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 116; p. 199.) ### Exhaustion of Administrative Review, Statute of Limitations, and Exceptional Circumstances - Determinations of when an Applicant was “adversely affected” by an administrative act for purposes of timely initiation of administrative review are found in multiple judgments. (Judgment No. 2006-1 (Mr. “O”), paras. 51–60; pp. 50–52. Judgment No. 2006-5 (Ms. “AA”), paras. 39–40; p. 142.) - As a general rule, lack of individual notification of review procedures does not excuse failure to comply with the requirement to exhaust administrative channels. (Judgment No. 2006-5 (Ms. “AA”), para. 41 and note 12; p. 143. Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 107; p. 195.) - The doctrine of “equitable tolling” does not apply to excuse an Applicant’s failure to initiate timely administrative review in the cases cited. (Judgment No. 2006-5 (Ms. “AA”), para. 41; p. 143.) - An implied “exceptional circumstances” exception to Article V (analogous to the express exception of Article VI) was recognized in certain circumstances; justified waiver of the statute of limitations was accepted where there was uncertainty by the Fund and Applicants as to the Tribunal’s jurisdiction ratione personæ. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 106, 110–111; pp. 195, 197–198.) - Nonetheless, “exceptional circumstances” should not be easily found given the importance of adherence to time limits in legal processes. (Judgment No. 2006-1 (Mr. “O”), para. 50; p. 49. Judgment No. 2006-5 (Ms. “AA”), para. 32; pp. 139–140. Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 106; p. 195.) - In deciding admissibility, the Tribunal considers the effect of Fund communications to Applicants in assessing actions taken to seek further review. (Judgment No. 2006-1 (Mr. “O”), para. 66; p. 54. Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 107; p. 196.) - Notice of administrative review procedures was incumbent on the Fund when communicating with non-staff members challenging denial of SRP benefits. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 107; p. 195.) ### Costs to Applicants and Remedies - The statutory provision does not contemplate an award of costs in the absence of a decision on the merits. (Judgment No. 2006-4 (Baker et al.) (Dismissal of the Applications as Moot), para. 26; pp. 127–128.) - Costs to Applicants were awarded in exceptional circumstances to Applicants for successful objection to a motion for summary dismissal where the case affected staff as a whole. (Judgment No. 2006-4 (Baker et al.) (Dismissal of the Applications as Moot), para. 26; pp. 127–128.) - The Tribunal may award costs pursuant to its remedial authority; submissions were invited on this point in Judgment No. 2006-6 (Ms. “M” and Dr. “M”), Decision. (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), Decision; pp. 244–245.) *IMF Administrative Tribunal Reports, Vol. V — Section 11.3, as reflected in the cited judgments.* ### Section 11.3 request ### Section 11.3 request ### Exhaustion of administrative review and Article V requirements - Tribunal considered whether Applicants met exhaustion requirement of Article V in light of availability and clarity of internal recourse procedures (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 74–80; pp. 175–180). - Requirement of initiating timely administrative review: - Rationale for and importance of requirement in assessing factors that may excuse failure to initiate timely review (Judgment No. 2006-1 (Mr. “O”), paras. 49–50, 67; pp. 49–50, 54). - Tribunal may consider “exceptional circumstances” at anterior stages of dispute resolution process in deciding whether Applicant has met requirement of Article V (Judgment No. 2006-1 (Mr. “O”), para. 49; p. 49; Judgment No. 2006-5 (Ms. “AA”), para. 31; p. 139). - Findings on whether requirement was met: - Requirement met where availability of internal recourse procedures appeared uncertain both to Fund and Applicants (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 111; pp. 197–198). - Requirement met where management exceptionally elected to respond to Applicant’s complaint to Managing Director and response met functional requirements of administrative review (Judgment No. 2006-1 (Mr. “O”), paras. 65–67; pp. 53–54). - Requirement met where non-staff beneficiaries under SRP Section 11.3 could not be expected to know recourse procedures and did not demonstrate casual disregard of legal requirements (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 111; pp. 197–198). - Requirement met where underlying purposes fulfilled and Tribunal had benefit of documentation of Committee’s later proceedings, including submissions of retiree on SRP Section 11.3 request (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 94–100; pp. 190–193). - Requirement not met where Applicant’s contention unsupported that she had not acquired knowledge of elements of her claim until after time limit for initiating administrative review (Judgment No. 2006-5 (Ms. “AA”), paras. 34–42; pp. 140–143). - Specific procedural considerations: - Resident Representative assignment did not excuse delay in initiating administrative review (Judgment No. 2006-1 (Mr. “O”), paras. 68–70; pp. 54–55). - Staff members ordinarily held to knowledge of review procedures and it is highly desirable that such procedures exclusively be followed (Judgment No. 2006-1 (Mr. “O”), para. 65; p. 53). - The “discovery rule” may be applied to establish “exceptional circumstances” is a possibility that should not be excluded, but facts did not support such a finding in Applicant’s case (Judgment No. 2006-5 (Ms. “AA”), para. 38; p. 142). - While room to question whether any administrative review was offered by SRP Administration Committee or exhausted by Applicants, in circumstances of case, responsibility not to be borne by Applicants (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 95; p. 191). ### Staff Retirement Plan (SRP) and Section 11.3 requests - Channels of administrative review of decisions arising under SRP identified and applied to SRP Section 11.3 matters (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 74–80; pp. 175–180). - Child support and SRP Section 11.3: - Evasion of service of child support order tantamount to “notice” under Administration Committee Rules under SRP Section 11.3 (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 216; p. 241). - No bona fide dispute as to validity of child support orders so as to justify failure to give effect pursuant to Administration Committee’s Rules under SRP Section 11.3 (Judgment No. 2006-6 (Ms. “M” and Dr. “M.”) [page reference in source]). - Former SRP Section 11.3 fundamentally defective as incompatible with international standards of nondiscrimination by failing to make adequate provision for children born out of wedlock in giving effect to child support orders (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 132–133; pp. 207–208). - “Marital relationship” requirement, later revised, not dispositive of Applicants’ request to give effect to court-ordered child support for period pre-dating its revision (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 112–133; pp. 198–208). - Remedies: - Fund to give effect to child support orders pursuant to Staff Retirement Plan provision (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), Decision; pp. 244–245). ### Procedural fairness, notice, and related rules - Notice and timing: - Determination of when notice of administrative acts “adversely affecting” Applicant arose for purposes of timely initiation of administrative review (Judgment No. 2006-1 (Mr. “O”), paras. 47–60; pp. 48–52; Judgment No. 2006-5 (Ms. “AA”), paras. 39–40; p. 142). - As a general rule, lack of individual notification of review procedures does not excuse failure to comply (Judgment No. 2006-5 (Ms. “AA”), para. 41 and note 12; p. 143; Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 107; p. 195). - Fund was on notice of Tribunal’s jurisprudence that Tribunal had jurisdiction ratione personæ and Fund obliged to inform Applicants of that recourse (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 110; p. 197). - In case of non-staff members challenging denial of SRP Section 11.3 request, in absence of notice by Fund of recourse to Tribunal, exceptional circumstances justify waiver of statute of limitations (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 108; p. 196). - Determination that communication of administrative review procedures was incumbent on Fund in communicating with non-staff members challenging denial of SRP Section 11.3 request (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 107–108, 111; pp. 195–198). - Procedural fairness elements and rules applied: - Required elements of procedural fairness in taking non-conversion decision (Judgment No. 2006-2 (Ms. “T”), para. 38; p. 85; Judgment No. 2006-3 (Ms. “U”), para. 38; p. 108). - Fluctuation in performance assessment does not indicate procedural irregularity (Judgment No. 2006-3 (Ms. “U”), para. 40 and note 14; pp. 108–109). - Applicant’s request for oral proceedings denied where written record was sufficiently clear (Judgment No. 2006-1 (Mr. “O”), paras. 11–13; pp. 33–34). ### Fixed-term appointments and non-conversion - Burden and standards: - Burden of proof on Applicant contesting non-conversion of fixed-term appointment (Judgment No. 2006-2 (Ms. “T”), para. 37; p. 85; Judgment No. 2006-3 (Ms. “U”), para. 37; p. 107). - Standard of IMFAT’s review of non-conversion and performance-based decisions (Judgment No. 2006-2 (Ms. “T”), para. 36; p. 84; Judgment No. 2006-3 (Ms. “U”), para. 36; pp. 106–107). - Findings: - Challenge to non-conversion summarily dismissed for failure to exhaust channels of administrative review (Judgment No. 2006-5 (Ms. “AA”), para. 42; p. 143). - Contentions that Fund failed to take account of or fairly weigh relevant evidence in non-conversion decision denied (Judgment No. 2006-2 (Ms. “T”), paras. 46–48; pp. 88–89; Judgment No. 2006-3 (Ms. “U”), paras. 46–49; pp. 111–112). - No entitlement to continuation beyond term of fixed-term appointment (Judgment No. 2006-2 (Ms. “T”), paras. 37, 41; pp. 85–86; Judgment No. 2006-3 (Ms. “U”), para. 37; p. 107). - Non-conversion to regular appointment sustained (no abuse of discretion) (Judgment No. 2006-2 (Ms. “T”), para. 53; p. 91; Judgment No. 2006-3 (Ms. “U”), para. 53; p. 113). - No procedural irregularity found in non-conversion decisions (Judgment No. 2006-2 (Ms. “T”), paras. 42–45, 52; pp. 87–88, 90–91; Judgment No. 2006-3 (Ms. “U”), paras. 40–49; pp. 108–112). - Context and guidance: - Extension (non-conversion) of fixed-term appointment for further testing of appointee discussed in multiple judgments (Judgment No. 2006-2 (Ms. “T”), paras. 35, 37, 41–43, 45, 51–52; pp. 83, 85–88, 90–91; Judgment No. 2006-3 (Ms. “U”), paras. 35, 37, 41–42, 45, 51; pp. 106–107, 109–110, 112–113). - Fund’s Guidelines for Fixed-Term Appointments (1995) considered in evaluating expectations of conversion (Judgment No. 2006-2 (Ms. “T”), paras. 32–35, 41–42 and notes 9, 10; pp. 82–83, 86–87; Judgment No. 2006-3 (Ms. “U”), paras. 32–35, 42, 44 and notes 11, 12, 15; pp. 104–106, 109–110). ### Human rights, nondiscrimination, and sources of law - Human rights scrutiny: - Greater degree of Tribunal’s scrutiny where contested decision allegedly violated human rights (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 117; p. 200). - Tribunal relied on international administrative jurisprudence recognizing human rights protection (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 125; p. 203). - Universal Declaration of Human Rights (1948) cited in context of protecting children born out of wedlock from impermissible discrimination (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 133; p. 208). - Internal law and sources: - Internal law of the IMF incorporates both formal and unwritten sources and general principles of international administrative law (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 123; p. 202). - Written law sets forth principle of nondiscrimination within context of employment relationship (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 126; p. 204). - Fund’s apparent failure to give consideration to effect of former SRP Section 11.3 on children born out of wedlock found not compatible with universally accepted principles (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 132–133; pp. 207–208). ### Interaction with Committee decisions, intervention, and remedies - Grievance and SRP Administration Committee: - Committee’s dismissal of Grievance for failure to initiate timely review under GAO No. 31 is relevant to but not dispositive of IMFAT’s decision as to whether exhaustion requirement of Article V has been met (Judgment No. 2006-1 (Mr. “O”), para. 48; pp. 48–49; Judgment No. 2006-5 (Ms. “AA”), para. 30; pp. 138–139). - Tribunal has benefit of transcript of proceedings and weighs record as element of evidence before it (Judgment No. 2006-2 (Ms. “T”), para. 5; p. 70; Judgment No. 2006-3 (Ms. “U”), para. 5; p. 93). - Intervention and notice to potential Intervenors: - Procedural prerequisites for intervention and Tribunal’s invitation to participate where statutory prerequisites met (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 12–15; pp. 148–150). - Retiree given notice of Tribunal proceedings and knowingly relinquished opportunity to participate as Intervenor where Applicants sought to give effect to child support orders pursuant to Staff Retirement Plan provision (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 15, 99; pp. 150, 193). - Remedies ordered: - Tribunal’s Decision required Fund to give effect to child support orders pursuant to Staff Retirement Plan provision (Judgment No. 2006-6 (Ms. “M” and Dr. “M”), Decision; pp. 244–245). *Source: IMF Administrative Tribunal Reports, Vol. V (Judgment No. references as cited).* ### Section 11.3 ### Section 11.3 ### Applicability of SRP Section 11.3 and Rule 9 (“prospective payments”) - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 174–224; pp. 224–243: Administration Committee’s Rules under SRP Section 11.3, and Rule 9 (“prospective payments”), do not preclude giving effect to court orders for support payments that are due prior to Applicants’ requests to the Fund where the court orders payment from future Fund pension benefits of past support obligations. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 172; p. 224: Rule 9 precludes giving effect to court orders for support payments due prior to Applicants’ requests to the Fund where the court order does not specify payment of past support obligations from future Fund pension benefits. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 134–158; pp. 208–219: Orders for child or spousal support need not specify that support payments be made from retiree’s Fund pension payments to be given effect under SRP Section 11.3. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 198, 206; pp. 235, 238: Under SRP Section 11.3, the governing consideration for child support orders is that the order must be issued by a court of competent jurisdiction; recognition by the retiree’s country of domicile is not required. ### Purpose and evolution of the SRP provisions on domestic relations orders - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 57, 87, 118–122, 136–148 and note 43; pp. 164, 168, 188, 200–202, 209–216: Discussion of provisions for giving effect to domestic relations orders under the SRP and the evolution of the Fund’s internal law. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 140, 143, 153, 155; pp. 211–213, 217–218: The underlying purpose of SRP Section 11.3 is to encourage enforcement of orders for family support and division of marital property and to favor legal systems in which such provisions are recognized. ### Interaction with other SRP provisions and Rules of Procedure - SRP Section 7.2: Cited in Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 167 and notes 53, 86; pp. 175–176, 221–222. - SRP Section 9.1: Cited in Judgment No. 2006-6 (Ms. “M” and Dr. “M”), note 111; p. 237. - SRP Section 11.1: Cited in Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 129, 135–136, 139–140, 163, 168 and notes 72, 80; pp. 206, 209–211, 221–222. ### Standard of review and human-rights considerations - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 131; p. 207: The care with which a provision is studied may be taken into account in giving deference to a regulatory decision. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 128; p. 205: Standard of review applied when assessing a classification scheme against the general principle of equal treatment. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 117; p. 200: A greater degree of scrutiny is appropriate over discretionary authority where the contested decision allegedly violated a universally recognized human right. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 132–133; pp. 207–208: The Fund’s apparent failure to give consideration to the effect on a child born out of wedlock of former SRP Section 11.3 may be incompatible with universally accepted principles of human rights. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 130; p. 207: Children born out of wedlock are protected by universally accepted principles of human rights from impermissible discrimination. ### Statute of limitations and exhaustion/time-bar issues - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 108; p. 196: “Exceptional circumstances” justified waiver of the statute of limitations for non-staff members challenging denial of an SRP Section 11.3 request where there was absence of notification by the Fund of review procedures. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 110–111; pp. 197–198: “Exceptional circumstances” justified waiver of the statute of limitations where there was uncertainty by the Fund and Applicants as to the Tribunal’s jurisdiction ratione personæ. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), paras. 105, 111; pp. 195, 197–198: In the circumstances of the case, the Tribunal was unwilling to impute to Applicants a knowing relinquishment of the right to judicial review. - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 106; p. 195: Time-bar considerations emphasized in the context of administrative review exhaustion. ### Cross-institutional jurisprudence and precedents - Judgment No. 2006-6 (Ms. “M” and Dr. “M”), para. 106; p. 195 and note citations: Relied on World Bank Administrative Tribunal jurisprudence including Agerschou v. IBRD, Decision No. 114 (1992), Bernstein v. IBRD, Decision No. 309 (2004), Mendaro v. IBRD, Decision No. 26 (1985), Mould v. IBRD, Decision No. 210 (1999), and others as persuasive precedent in related issues. *Source: Judgment No. 2006-6 (Ms. “M” and Dr. “M”) and related judgments and statutory provisions reproduced in IMF Administrative Tribunal Reports, Vol. V.* ### 3. The expenses of the Tribunal shall be borne by the Fund. ### 3. The expenses of the Tribunal shall be borne by the Fund. ### Funding & Expenses - The expenses of the Tribunal shall be borne by the Fund. - Article XXI requires that any special agreement extending the Tribunal’s competence to another international organization include provisions concerning the organization’s participation in the administrative arrangements for the functioning of the Tribunal and concerning its sharing the expenses of the Tribunal. ### Evidence, Documents & Confidentiality - The Tribunal may require the production of documents held by the Fund. - The Managing Director may withhold evidence if he determines that the introduction of such evidence might hinder the operation of the Fund because of the secret or confidential nature of the document. - Such a determination by the Managing Director shall be binding on the Tribunal, provided that the applicant’s allegations concerning the contents of any document so withheld shall be deemed to have been demonstrated in the absence of probative evidence to the contrary. - The Tribunal may examine witnesses and experts, subject to the same qualification. - The deliberations of the Tribunal shall be confidential. - The President may decide that the identities or any other means of identification of the applicant or other persons mentioned in a judgment shall be deleted from copies made available by the Secretariat. ### Rules of Procedure & Tribunal Organization - Subject to the provisions of the Statute, the members of the Tribunal shall, by majority vote, establish the Tribunal’s Rules of Procedure. - The Rules of Procedure shall include provisions concerning: - presentation of applications and the procedure to be followed in respect to them; - intervention by persons to whom the Tribunal is open under Section 1 of Article II, whose rights may be affected by the judgment; - presentation of testimony and other evidence; - summary dismissal of applications without disposition on the merits; and - other matters relating to the functioning of the Tribunal. ### Representation & Cost Allocation for Counsel - Each party may be assisted in the proceedings by counsel of his choice, other than members of the Fund’s Legal Department, and shall bear the cost thereof, subject to the provisions of Article XIV, Section 4 and Article XV. - If the Tribunal concludes that an application is well-founded in whole or in part, it may order that the reasonable costs incurred by the applicant in the case, including the cost of applicant’s counsel, be totally or partially borne by the Fund, taking into account the nature and complexity of the case, the nature and quality of the work performed, and the amount of the fees in relation to prevailing rates. - The Tribunal 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 that 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 under Article XV 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. ### Sessions, Oral Proceedings & Location - 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, Finality & Publication - 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 original of each judgment shall be filed in the archives of the Fund. A copy of the judgment, attested to by the President, shall be delivered to each of the parties concerned. - A copy shall also be made available by the Secretariat on request to any interested person, subject to deletions of identifying information as decided by the President. ### Remedies, Compensation Limits & Implementation - If the Tribunal concludes that an application challenging the legality of an individual decision is well-founded, it shall prescribe the rescission of such decision and all other measures, whether involving the payment of money or otherwise, required to correct the effects of that decision. - When prescribing non-monetary measures, the Tribunal shall fix an amount of compensation 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. ### Procedural Remedies, Adjournments & Time Limits for Revision - When a procedure prescribed in the rules of the Fund for the taking of a decision has not been observed, the Tribunal may, at the request of the Managing Director, adjourn the proceedings for institution of the required procedure or for adoption of appropriate corrective measures, for which the Tribunal shall establish a time certain. - A party to a case in which a judgment has been delivered may request revision of the judgment in the event of the discovery of a fact which by its nature might have had a decisive influence on the judgment and which at the time the judgment was delivered was unknown both to the Tribunal and to that party. Such a request must be made within a period of six months after that party acquired knowledge of such fact (Article XVI). - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error (Article XVII). ### Temporal Jurisdiction & Transitional Rules - 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. - In the case of decisions taken between October 15, 1992 and the establishment of the Tribunal, the application shall be admissible only if it is filed within three months after the establishment of the Tribunal. For purposes of this provision, the Tribunal shall be deemed to be established when the staff has been notified by the Managing Director that all the members of the Tribunal have been appointed. *Statute of the Administrative Tribunal of the International Monetary Fund* ### 2. For purposes of this Statute, ### imfat-5 - 2. For purposes of this Statute, ### Definitions of core terms - "administrative act" — "any individual or regulatory decision taken in the administration of the staff of the Fund." - "regulatory decision" — "any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund." - "member of the staff" includes: - (i) "any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff;" - (ii) "any current or former assistant to an Executive Director;" - (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." ### Tribunal competence (ratione materiae) and scope - The definitions in subsections (a) and (b) delineate subject matter jurisdiction (competence ratione materiae) of the tribunal. - The tribunal is competent to hear challenges to the legality of: - "administrative act" as defined above, encompassing individual and regulatory decisions affecting terms and conditions of employment, including staff regulations set forth in the N Rules. - "regulatory decisions," either directly or in the context of review of an individual decision based on such a regulatory decision (examples include Executive Board decisions on compensation, pensions, tax allowance, benefits, job grading, the SRP, and staff rules and regulations promulgated by management such as the General Administrative Orders). - To invoke jurisdiction there must be a "decision" identified in the application filed by the staff member; in most individual cases the staff member will have pursued established channels for administrative review (including recourse to the Grievance Committee) before challenging the decision to the tribunal. - The statute excludes review of resolutions adopted by the Board of Governors; the Board of Governors can, by resolution or referral for ultimate approval, foreclose tribunal review of the legality of a decision. ### Who may bring claims and exclusions - Eligible claimants: - Persons meeting the "member of the staff" definition in (c)(i)–(iii), including successors in interest asserting rights of a deceased staff member. - Excluded persons and entities: - Unsuccessful candidates to the staff. - Persons employed under contract to the Fund. - The Staff Association would not be entitled to bring actions in its own name before the tribunal. ### Time-period calculation rule - "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;" - Practical effect: the period starts on the day after the challenged decision; if the last day falls on a weekend or holiday, the deadline extends through the next working day. ### Gender usage - "the masculine pronoun shall include the feminine pronoun." ### Article III — limits on tribunal powers and standards of review - "The Tribunal shall not have any powers beyond those conferred under this Statute." - Principle: tribunal has limited jurisdiction and may act only to the extent conferred by 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 must apply formal written sources (Articles of Agreement, By-Laws and Rules and Regulations, General Administrative Orders) and unwritten sources (administrative practice; general principles such as audi alteram partem). - Review of regulatory decisions is competent but narrow; tribunal must respect noninterference with decision-making organs. - Discretionary managerial 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 Fund may prospectively alter terms and conditions of employment unless it has obligated itself (formally or by consistent established practice) not to amend a specific element; acquired or vested rights are protected only in the narrow sense of non-retroactivity. - "Nothing in this Statute shall limit or modify the powers of the organs of the Fund under the Articles of Agreement, including the lawful exercise of their discretionary authority in the taking of individual or regulatory decisions, such as those establishing or amending the terms and conditions of employment with the Fund." - The tribunal must respect the separation of powers and may not substitute its judgment for that of legislative or executive organs in matters of policy or advisability. - "The Tribunal shall be bound by any interpretation of the Fund’s Articles of Agreement decided by the Executive Board, subject to review by the Board of Governors in accordance with Article XXIX of that Agreement." - An Executive Board interpretation of the Articles is binding on the tribunal in the context of a challenge to a decision, although the tribunal still decides findings of legality consistent with that interpretation. ### Article IV — self-competence - "Any issue concerning the competence of the Tribunal shall be settled by the Tribunal in accordance with this Statute." - The tribunal has authority to determine its own competence within the terms of the statute, allowing interpretation but not expansion of its competence. *Report of the Executive Board* ### 1. When the Fund has established channels of administrative ### imfat-5 - 1. When the Fund has established channels of administrative review for the settlement of disputes, an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review ### Exhaustion of administrative review (Article V) - An application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review. - Where available channels include a Fund procedure for complaints and grievances of individual staff members: - Administrative review is deemed exhausted when: - three months have elapsed since a recommendation on the matter has been made to the Managing Director and the applicant has not received a decision stating that the relief he requested would be granted; - a decision denying the relief requested has been notified to the applicant; or - two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - Where available channels do not include the procedure described above: - Administrative review is deemed exhausted when: - three months have elapsed since the request for review was made and no decision stating that the relief requested would be granted has been notified to the applicant; - a decision denying the relief requested has been notified to the applicant; or - two months have elapsed since a decision stating that the relief requested would be granted has been notified to the applicant, and the necessary measures have not actually been taken. - All channels of administrative review shall be deemed exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal. ### Time limits for filing (Article VI) - Applications challenging the legality of an individual decision: - Not admissible if filed more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision. - The three-month period does not include time required for administrative review; it begins only after administrative review (including internal committees like the Grievance Committee, if applicable) is fully exhausted and the Managing Director has decided whether to implement the Committee's recommendation. - Under current Grievance Committee rules, grievants have up to one year from the event giving rise to the grievance to bring an action (this one-year period precedes the three-month tribunal statute of limitations). - Comparable periods in other international administrative tribunals are generally 60 days or 90 days; except in cases of death, statutes of limitations in other tribunals do not exceed 90 days. - Applications challenging the legality of a regulatory decision: - Not 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. - Illustrative timing example: - If the Grievance Committee made a recommendation to the Managing Director on January 2, the three-month period prescribed in Article V, Section 2 runs from January 3 to April 2, inclusive. - If administrative review is exhausted on April 2, the applicant would have three months, i.e., from April 3 to July 2, in which to file an application with the Tribunal. - If the applicant received a favorable decision on April 2 but did not receive the relief requested by June 2, inclusive, he would have three months, i.e., from June 3 to September 2, inclusive, in which to bring an action. - Where an applicant pursues administrative remedies on interpretation or application issues, that pursuit suspends the time period for seeking review of the decision on grounds for which no administrative review is available; upon proceeding to the Tribunal after administrative disposition, the applicant may raise the legality of an underlying regulatory decision regardless of when it was enacted, subject to Article XX. ### Waiver of time limits and suspension of implementation - The Tribunal may, in exceptional circumstances, waive the time limits in Article VI, Sections 1 or 2, if it considers the delay justified (examples: extensive mission travel, prolonged illness, other exigent personal circumstances). - A staff member may request a waiver before or after the deadline; a waiver requires a finding that the delay was justified. - Filing an application does not suspend the implementation of the decision contested. - The rule follows other tribunals and preserves efficient operation of the organization and the effectiveness of disciplinary measures. - The Tribunal is not precluded from ordering interim measures if warranted by circumstances (e.g., potential exceptions), but generally preliminary injunctions are rare absent irreparable injury. ### Settlement and termination of applications - No application may be filed or maintained after the applicant and the Fund have reached an agreement on the settlement of the dispute giving rise to the application. ### Composition, appointment, and removal of Tribunal members (Article VII) - Appointment rules: - 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 and replacement: - The President and associate members and their alternates may be reappointed in accordance with the appointment procedures; a member appointed to replace a member whose term has not expired holds office for the remainder of the predecessor’s term. - Conflict of interest and recusal: - Any member who has a conflict of interest in a case shall recuse himself. - Decision-making membership: - Decisions shall be taken by the President and the associate members; if an associate member is recused or unable to hear a case, an alternate shall be designated by the President. - If the President is unable to hear a case, the elder of the associate members shall act as President and shall be replaced by an alternate as associate member. - Removal: - The Managing Director shall terminate the appointment of a member who, in the unanimous opinion of the other members, is unsuited for further service. ### Independence and immunities (Article VIII) - Tribunal members shall be completely independent in the exercise of their duties; they shall not receive any instructions or be subject to any constraint. - In performing their functions, members shall be considered as officers of the Fund for purposes of the Articles of Agreement of the Fund. - Members would thereby enjoy the privileges and immunities accorded to officers and employees of the Fund under Article IX, Section 8 of the Articles of Agreement, including immunity from judicial process; such protection supports independence and provides a basis for dismissal, on immunity grounds, of lawsuits in national courts against members with respect to official duties. *Report of the Executive Board, Administrative Tribunal of the IMF* ### 1. The Managing Director shall make the administrative arrange- ### imfat-5 - 1. The Managing Director shall make the administrative arrangements necessary for the functioning of the Tribunal ### Administrative organization and support - The Managing Director shall make the administrative arrangements necessary for the functioning of the Tribunal. - The Managing Director shall designate personnel to serve as a Secretariat to the Tribunal. - Such personnel, in the discharge of duties hereunder, shall be under the authority of the President. - The personnel assigned to serve the Tribunal shall be independent from the Fund 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 tribunals are usually serviced by a small secretariat. ### Confidentiality and personnel conduct - Secretariat personnel shall not, at any time, disclose confidential information received in the performance of their duties. - Confidentiality obligations apply to disclosure both outside and within the Fund; personnel information is available to staff only on a need-to-know basis. ### Evidence, document production, and witness examination (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 contents of that document, the applicant’s allegations concerning the contents shall be deemed to have been demonstrated in the absence of probative evidence to the contrary (i.e., applicant’s assertion is prima facie evidence and creates a rebuttable presumption). - The Tribunal may examine witnesses and experts, subject to the same qualification. - In practice, most administrative tribunals rely largely on written evidence and pleadings. ### Tribunal 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 alternates). - Possible rule topics: procedures for filing applications and pleadings; obtaining information; presentation of cases and oral proceedings; participation of amicus curiae; availability of judgments; summary dismissal procedures. ### Representation, costs, and counsel (Article X, Section 3; Article XIV, Section 4) - Each party may be assisted by counsel of his choice, other than members of the Fund’s Legal Department; each party shall bear the cost thereof, subject to Articles XIV, Section 4 and Article XV. - As a general rule, each side bears its own costs, including attorney’s fees. - Article XIV, Section 4: If the Tribunal concludes an application challenging the legality of an individual decision is well-founded in whole or in part, it may order that reasonable costs incurred by the applicant, 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; - the amount of the fees in relation to prevailing rates. - Costs covered could include transportation to Washington, D.C. for applicants not working at Fund headquarters and fees of expert witnesses. - Example precedent: Powell, UNAT Judgment No. 237 (1979) — applicant requested payment of costs in excess of $100,000 and was awarded $2,000 by the tribunal. - The Tribunal would be conservative and exercise discretion in awarding costs; awards against the Fund are authorized only where an applicant has succeeded in whole or in part. ### Sessions and oral proceedings (Articles XI–XII) - The Tribunal shall hold its sessions at the Fund’s headquarters at dates 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 exceptional circumstances require they be held in private. - Oral proceedings are rare in international administrative tribunals, which generally decide cases on written submissions and the administrative record. ### Decisions, finality, and deliberations (Article XIII) - 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. - Dissents need not be registered, but dissenting opinions are possible under the Statute. - Further recourse to the ICJ would not be available under the adopted approach. ### Remedies for individual and regulatory decisions (Article XIV, Sections 1–3) - Section 1: 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. - Section 2: When prescribing measures other than payment of money, the Tribunal shall fix an amount of compensation to be paid to the applicant should the Managing Director, within one month of notification of the judgment, decide, in the interest of the Fund, that such measures shall not be implemented. - The amount of such compensation shall not exceed the equivalent of three hundred percent (300%) of the current or, as the case may be, last annual salary of such person from the Fund. - The Tribunal may, however, in exceptional cases, when it considers it justified, order the payment of a higher compensation; a statement of the specific reasons for such an order shall be made. - The Managing Director may elect monetary compensation in lieu of nonmonetary remedial measures (e.g., reinstatement), particularly when implementation of nonmonetary relief is impractical or not in the Fund’s interest. - Section 3: If the Tribunal concludes an application challenging the legality of a regulatory decision is well-founded, it shall annul such decision. - Any individual decision adversely affecting a staff member taken before or after the annulment and on the basis of such regulatory decision shall be null and void. - Annulment renders the regulatory decision unenforceable against the applicant in the immediate case and requires corrective measures for adversely affected staff members. - An application directly challenging the legality of a regulatory decision would not be admissible if the regulatory decision had been in effect by the organization for over three months. ### Discretion and limits on monetary awards - Monetary award limit for nonmonetary remedies: not to exceed three hundred percent (300%) of current or last annual salary, except in exceptional justified cases. - Comparison to other tribunals (practice noted in the text): - Some tribunals have no limit on compensation; - UNAT, OASAT, IDBAT place a limit equal to two years’ net pay; - WBAT has a limit of three years’ net pay; - Many statutes include provision allowing higher awards in exceptional cases, with reasons stated. *Report of the Executive Board, Administrative Tribunal of the IMF* ### 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 ### Adjournment for procedural non‑observance (Article XIV, Section 5) - The Tribunal may, at the request of the Managing Director, adjourn proceedings: - to permit institution of the required procedure; or - to permit adoption of appropriate corrective measures. - The Tribunal shall establish a time certain for such adjournment. - Section 5 of Article XIV permits corrective measures in respect of procedural errors committed by the Fund to be implemented after adjournment of a case in lieu of proceeding to decision on the merits. ### Costs and compensation for manifestly unfounded or abusive applications (Article XV) - The Tribunal may order that reasonable compensation be made by the applicant to the Fund for all or part of the cost of defending the case if it finds that: - a. the application was manifestly without foundation either in fact or under existing law, unless the applicant demonstrates that the application was based on a good faith argument for an extension, modification, or reversal of existing law; or - b. the applicant intended to delay the resolution of the case or to harass the Fund or any of its officers or employees. - Collection and waiver: - The amount awarded by the Tribunal shall be collected by way of deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director. - The Managing Director may, in particular cases, waive the claim of the Fund against the applicant. - Purpose and scope: - The provision is intended as a deterrent to pursuit of cases manifestly without factual basis or legal merit and to applications amounting to abuse of the review process. - Unless summarily dismissed by the Tribunal, the Tribunal must hear the case and dispose of the matter on the merits. ### Revision and correction of judgments (Articles XVI–XVII) - Article XVI (revision for discovered facts): - A party may request revision of a judgment if a discovered fact might have had a decisive influence on the judgment and was unknown both to the Tribunal and to that party at the time the judgment was delivered. - The request must be made within a period of six months after that party acquired knowledge of such fact. - Article XVII (interpretation and correction): - The Tribunal may interpret or correct any judgment whose terms appear obscure or incomplete, or which contains a typographical or arithmetical error. - Corrections or interpretations may be made by the Tribunal on its own initiative or upon application by a party. ### Publication, confidentiality, and filing of judgments (Article XVIII) - Filing and distribution: - The original of each judgment shall be filed in the archives of the Fund. - A copy of the judgment, attested to by the President, shall be delivered to each of the parties concerned. - Availability to interested persons: - A copy shall also be made available by the Secretariat on request to any interested person. - The President may decide that the identities or any other means of identification of the applicant or other persons mentioned in the judgment shall be deleted from such copies to protect privacy or confidentiality. - Effect: - Judgments are to be in the public domain and may be cited or published, subject to deletion of identifying information as authorized by the President. ### Temporal jurisdiction and transitional provisions (Article XX) - Exclusions: - The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if channels of administrative review concerning that act were exhausted only after that date. - Transitional admissibility: - For decisions taken between October 15, 1992 and the establishment of the Tribunal, an application shall be admissible only if it is filed within three months after the establishment of the Tribunal. - For purposes of this provision, the Tribunal shall be deemed to be established when the staff has been notified by the Managing Director that all the members of the Tribunal have been appointed. - Practical effect: - The Tribunal is competent to hear cases involving decisions taken on or after the effective starting date of the Tribunal’s jurisdiction; administrative acts taken before October 15, 1992 are not reviewable. ### Affiliation of other international organizations (Article XXI) - The competence of the Tribunal may be extended to any international organization upon terms established by a special agreement with the Fund. - Each special agreement shall provide, inter alia, that: - the organization concerned shall be bound by the judgments of the Tribunal; - the organization shall be responsible for payment of any compensation awarded by the Tribunal in respect of a staff member of that organization; - the agreement shall include provisions concerning the organization’s participation in administrative arrangements for the Tribunal and sharing the expenses of the Tribunal. - Limitations: - An affiliating organization would not have authority with respect to appointment of the Tribunal’s members or amendment of the governing statute. ### Procedure for adoption of the proposed statute and resolution (Part III–Part IV) - Proposed effective date: - The Executive Board recommended that, if approved by the Board of Governors, the statute enter into force as of October 15, 1992. - Voting without meeting: - The Executive Board requested Governors to vote without meeting pursuant to Section 13 of the By-Laws. - To be valid, votes must be received at the seat of the Fund before 6:00 p.m., Washington time, on December 21, 1992. - The resolution will be adopted if replies are received from a majority of the Governors exercising a majority of the total voting power and if a majority of the votes is cast in favor of the resolution. - Outcome: - The Board of Governors resolved that the proposed Statute of the Administrative Tribunal of the International Monetary Fund is hereby adopted (Resolution No. 48-1). ### Rules of Procedure (1994) - Applicability and language: - The Rules of Procedure apply to the Administrative Tribunal of the International Monetary Fund and are subject to the Fund’s Articles of Agreement and the Statute of the Tribunal. - The working language of the Tribunal shall be English. - President and Registry duties: - The President shall preside over cases, direct the Registry, prepare an annual report on activities, and perform functions entrusted by the Rules. - The Registrar, under the authority of the President, shall receive applications, transmit documents and notifications, make a dossier for each case, attend hearings, keep minutes, and expeditiously perform assigned functions. - Recusal and counsel: - Members shall recuse themselves in specified circumstances involving relationships, prior roles, or other circumstances making participation seem inappropriate; a recusing member shall immediately inform the President. - Each party may at any time be assisted by counsel, whose designation shall be notified to the Registrar. - Applications (Rule VII): - Applications shall be filed using the form attached as Annex A; representation is notified using the form attached as Annex B. - Applications must contain: - the name and official status of the Applicant; - the name of the Applicant’s representative, if any; - the decision being challenged and the authority responsible; - the channels of administrative review pursued and results; - the reasons why the decision is believed illegal; - a statement of the supporting facts; - the relief or remedy sought, including the amount of compensation, if any, and specific performance requested. - Rule dates: - 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; Rules of Procedure (1994).* ### 3. The Applicant shall attach as annexes all documents cited in the ### 3. The Applicant shall attach as annexes all documents cited in the application ### Application requirements and annexes - 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. - Four additional copies of the application and its attachments shall be submitted to the Registrar. - An application shall satisfy the provisions of Article XX, and be submitted to the Tribunal within the time limits prescribed by Article VI, of the Statute. ### Correction of deficiencies - If the application does not fulfill the requirements established in Paragraphs 1 through 4, the Registrar shall: - advise the Applicant of the deficiencies and give him a reasonable period of time, not less than fifteen days, in which to make the appropriate corrections or additions; - if corrected within that period, the application shall be considered filed on the original date. - If not corrected within the initial period, the Registrar shall: - (i) notify the Applicant that the period of time within which to make the appropriate changes has been extended, indicating the length of time thereof; - (ii) make the necessary corrections when the defects in the application do not affect the substance; or - (iii) by order of the President, notify the Applicant that the submission does not constitute an application and cannot be filed as such. ### Notifications and transmission - Upon ascertaining that the formal requirements of the Rule have been met, the Registrar shall notify the Fund of the application and shall transmit a copy of it to the General Counsel. - The application shall be signed on the last page by the Applicant or the representative designated in accordance with Paragraph 1. In the event of the Applicant’s incapacity, the required signature shall be furnished by his legal representative. ### Rule VIII — Answer (Fund) - Once the application has been duly notified by the Registrar to the Fund, the Fund shall answer the application in writing and submit any additional documentary evidence within forty-five days unless, upon request, the President sets another time limit. - The Fund’s answer shall be submitted to the Tribunal and to the Applicant through the Registrar. - The Fund shall include as annexes all documents referred to in the answer in accordance with the rules established for the application in Rule VII. - The answer shall be signed on the last page by the representative of the Fund. - Four additional copies of the answer and its attachments shall be submitted to the Registrar. - Upon ascertaining that the formal requirements have been met, the Registrar shall transmit a copy of the Fund’s answer to the Applicant. ### Rule IX — Reply (Applicant) - The Applicant may file with the Registrar a written reply to the answer within thirty days from the date on which the answer is transmitted to him, unless, upon request, the President sets another time limit. - The complete text of any document referred to in the written reply shall be annexed thereto in accordance with the rules established for the application in Rule VII. - The requirements of Rule VII, Paragraphs 4 and 8, shall apply to the reply. - Upon ascertaining that the formal requirements have been met, the Registrar shall transmit a copy of the Applicant’s reply to the Fund. ### Rule X — Rejoinder (Fund) - The Fund may file with the Registrar a written rejoinder within thirty days of receiving the Applicant’s reply, unless, upon request, the President sets another time limit. - The complete text of any document referred to in the written rejoinder shall be annexed thereto in accordance with the rules established for the application in Rule VII. - The requirements of Rule VIII, Paragraphs 2 and 3, shall apply to the rejoinder. - Upon ascertaining that the formal requirements have been met, the Registrar shall transmit a copy of the Fund’s rejoinder to the Applicant. - Without prejudice to Rule XI, after the rejoinder has been filed, no further pleadings may be received. ### Rule XI — Additional pleadings - In exceptional cases, the President may, on his own initiative, or at the request of either party, call upon the parties to submit additional written statements or additional documents within a period which he shall fix. - Additional documents shall be furnished in the original or in an unaltered copy and accompanied by any necessary translations. - The requirements of Rule VII, Paragraphs 4 and 8, or Rule VIII, Paragraphs 2 and 3, as applicable, shall apply to any written statements and additional documents. - Written statements and additional documents shall be transmitted by the Registrar, on receipt, to the other party or parties. ### Rule XII — Summary dismissal - Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if it is clearly inadmissible. - The Fund may file such a motion within thirty days of its receipt of the application. The filing of the motion shall suspend the period of time for answering the application until the motion is acted on by the Tribunal. - The complete text of any document referred to in the motion shall be annexed thereto in accordance with the rules established for the application in Rule VII. The requirements of Rule VIII, paragraphs 2 and 3, shall apply to the motion. - Upon ascertaining that the motion meets the formal requirements, the Registrar shall transmit a copy thereof to the Applicant. - The Applicant may file with the Registrar a written objection to the motion within thirty days from the date on which the motion is transmitted to him. - The complete text of any document referred to in the objection shall be annexed thereto in accordance with the rules established for the application in Rule VII. The requirements of Rule VII, Paragraphs 4 and 8, shall apply to the objection to the motion. - Upon ascertaining that the objection meets the formal requirements, the Registrar shall transmit a copy thereof to the Fund. - There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests. ### Rule XIII — Oral proceedings - Oral proceedings shall be held if the Tribunal decides such proceedings are necessary for disposition of the case; the Tribunal shall hear oral arguments of the parties and their counsel, and may examine them. - At a time specified by the Tribunal before oral proceedings, each party shall inform the Registrar (and through him the other parties) of the names and description of any witnesses and experts to be heard, indicating the points to which the evidence is to refer. The Tribunal may also call witnesses and experts. - The Tribunal shall decide on applications for hearing witnesses or experts and determine, in consultation with the parties or their counsel, the sequence of oral proceedings. - Where a witness cannot appear, the Tribunal may decide the witness shall reply in writing to questions; the parties retain the right to comment on any such written reply. - Parties or their counsel may, under the direction of the President, put questions to witnesses and experts. The Tribunal may also examine witnesses and experts. - Each witness shall make the declaration: “I solemnly declare upon my honor and conscience that my testimony shall be the truth, the whole truth and nothing but the truth.” - Each expert shall make the declaration: “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. - The Tribunal may limit oral testimony where it considers the written documentation adequate. - The President is empowered to issue orders and decide matters necessary for orderly disposition of cases, including ruling on objections concerning examination of witnesses or introduction of documentary evidence. ### Rule XIV — Intervention - Any person to whom the Tribunal is open under Article II, Section 1 of the Statute may, before the closure of the written pleadings, apply to intervene on the ground that he has a right which may be affected by the judgment. - The rules regarding preparation and submission of applications shall apply mutatis mutandis to applications for intervention. - Upon ascertaining that formal requirements have been complied with, the Registrar shall transmit a copy of the application for intervention to the Applicant and to the Fund, each being entitled to present views on the issue of intervention within thirty days. - Upon expiration of that deadline, the President, in consultation with the other members of the Tribunal, shall decide whether to grant the application to intervene. If intervention is admitted, the intervenor shall thereafter participate in the proceedings as a party. - In order to inform the Fund community of proceedings pending before the Tribunal, the Registrar, upon notification of an application to the Fund, shall, unless the President decides otherwise, issue a summary of the application, without disclosing the name of the Applicant, for circulation within the Fund. ### Rule XV — Amicus curiae - The Tribunal may, at its discretion, permit any persons, including the duly authorized representatives of the Staff Association, to communicate their views to the Tribunal. ### Rule XVI — Time limits - The calculation of time limits prescribed in these Rules of Procedure, all of which refer to calendar days, shall not include the day of the event from which the period runs, and shall include the next working day of the Fund when the last day of the period is not a working day. ### Rule XVII — Production of documents - The Applicant may, before the closure of the pleadings, request the Tribunal to order the production of documents or other evidence which he has requested and to which he has been denied access by the Fund, accompanied by any relevant documentation bearing upon the request and the denial or lack of access. The Fund shall be given an opportunity to present its views. - The Tribunal may reject the request if it finds that the documents or evidence requested are clearly irrelevant, or that compliance would be unduly burdensome or would infringe on the privacy of individuals. For purposes of assessing privacy, the Tribunal may examine in camera the documents requested. - The Tribunal may, subject to Article X, Section 1 of the Statute, order the production of documents or other evidence in the possession of the Fund, and may request information which it deems useful to its judgment. - When the Tribunal is not in session, the President shall exercise the powers set forth in this Rule. ### Rule XVIII — Judgments - All deliberations of the Tribunal shall be in private. The judgment shall be adopted by majority vote. - Once the final text of the judgment has been approved and adopted, the judgment shall be signed by the President and the Registrar and shall contain the names of the members who have taken part in the decision. - Any member differing as to the grounds or some conclusions, or dissenting from the judgment, may append a separate or dissenting opinion. - The judgment and any appended opinions shall be transmitted to the parties and to amici curiae. They shall be available to interested persons upon request to the Registrar, who shall arrange for their publication. - Clerical and arithmetical errors in the judgment may be corrected by the Tribunal. ### Rule XIX — Revision of judgments - A party may request revision of a judgment only if a fact or a document is discovered which might have had a decisive influence on the judgment and which at the time of the judgment was unknown to the Tribunal and to the party requesting revision and such ignorance was not the responsibility of that party. - The revision must be requested within thirty days from the date on which the fact or document is discovered and, in any event, within one year from the date on which the party requesting the revision was notified of the judgment unless, upon request, the President sets another time limit. - The procedure set forth in Rules VIII through XI shall be applied, mutatis mutandis, to the request for revision. - The Tribunal shall decide whether to admit the application for revision. If admitted, the Tribunal shall pass judgment on the matter at issue in accordance with these Rules. ### Rule XX — Interpretation of judgments - After a judgment has been rendered, a party may apply to the Tribunal requesting an interpretation of the operative provisions of the judgment, in accordance with Article XVII of the Statute. - The application shall be admissible only if it states with sufficient particularity in what respect the operative provisions of the judgment appear obscure or incomplete. - The Tribunal shall, after giving the other party or parties a reasonable opportunity to present views, decide whether to admit the application for interpretation. If admitted, the Tribunal shall issue its interpretation, which shall thereupon become part of the original judgment. ### Rule XXI — Miscellaneous provisions - The President shall, in consultation with the other members of the Tribunal, fix the dates of the Tribunal’s sessions. - The Tribunal, or when not in session the President after consultation where appropriate with the members of the Tribunal, may in exceptional cases modify the application of these Rules, including any time limits thereunder. - The Tribunal or, when not in session, the President may deal with any matter not expressly provided for in the present Rules. ### Annexes: Forms - Annex A contains the Form of Application with numbered sections I through IX for personal status, official status, decision challenged, administrative review, reasons, facts, relief sought, annexes pursuant to Rule VII, para. 3, and additional information. - Annex B contains the Form of Appointment of Representative (and Counsel) with an authorization template and signature/date fields. *Rules of Procedure (1994), Administrative Tribunal of the International Monetary Fund* ### 1. These Rules of Procedure shall apply to the Administrative Tri- ### Rules of Procedure (2004) ### Applicability and Governing Provisions - These Rules of Procedure shall apply to the Administrative Tribunal of the International Monetary Fund (hereinafter “Tribunal”). - These Rules shall be subject to the provisions of: - (a) the Fund’s Articles of Agreement; - (b) the Statute of the Tribunal. - For purposes of these Rules, the masculine pronoun shall include the feminine pronoun. - The Rules of Procedure, established in accordance with Article X, Section 2 of the Statute, entered into force on February 18, 1994 and were amended on August 31, 1994. These Rules were further amended on December 9, 2004, with effect with respect to all applications filed after December 31, 2004. ### Official Language - The working language of the Tribunal shall be English. ### President - The President of the Tribunal shall: - (a) preside over the consideration of cases by the Tribunal; - (b) direct the Registry of the Tribunal in the performance of its functions; - (c) prepare an annual report on the activities of the Tribunal; and - (d) perform the functions entrusted to the President by these Rules of Procedure. ### Registry - Under the authority of the President, the Registrar of the Tribunal shall: - (a) receive applications instituting proceedings and related documentation of the case; - (b) be responsible for transmitting all documents and making all notifications required in connection with cases before the Tribunal; - (c) make for each case a dossier which shall record all actions taken in connection with the case, the dates thereof, and the dates on which any document or notification forming part of the procedure is received in or dispatched from his office; - (d) attend hearings, meetings, and deliberations of the Tribunal; - (e) keep the minutes of these hearings and meetings as instructed by the President; - (f) upon the transmittal of an application to the Fund, unless the President decides otherwise, circulate within the Fund a notice summarizing the issues raised in the application, without disclosing the name of the Applicant, in order to inform the Fund community of proceedings pending before the Tribunal; and - (g) expeditiously perform the functions entrusted to the Registrar by the Rules of Procedure and carry out tasks as assigned by the President. ### Recusal - In accordance with Article VII, Section 3 of the Statute, a member of the Tribunal shall recuse himself: - (a) in cases involving persons with whom the member has a personal, familial or professional relationship; - (b) in cases concerning which he has previously been called upon in another capacity, including as advisor, representative, expert or witness; or - (c) if there exist other circumstances such as to make the member’s participation seem inappropriate. - Any member recusing himself shall immediately inform the President of the Tribunal. ### Representation - In accordance with Article X, Section 3 of the Statute, each party may at any time choose to be assisted by counsel or other representative, whose designation shall be notified to the Registrar. ### Application (Rule VII) - Filing and form: - An application shall be filed by the Applicant or his duly authorized counsel or other representative, following the form attached as Annex A hereto. If an Applicant wishes to be represented, he shall also complete the form attached as Annex B hereto. - Each application shall contain: - (a) the name and official status of the Applicant; - (b) the name of the Applicant’s counsel or other representative, if any; - (c) the decision being challenged, and the authority responsible for the decision; - (d) the channels of administrative review, as applicable, that the Applicant has pursued and the results thereof; - (e) the reasons why he believes the decision is illegal; - (f) a statement of the supporting facts; - (g) the relief or remedy that is being sought pursuant to Article XIV of the Statute, including (i) the amount of compensation, if any, claimed by the Applicant or the specific performance of any obligation which is requested, or both, (ii) in a case where measures other than the payment of money are sought, any exceptional circumstances that would warrant the fixing of the amount greater than three hundred percent (300%) of salary in accordance with Article XIV, Section 2, and (iii) costs as the Tribunal may award pursuant to Article XIV, Section 4; - (h) any request for production of documents as provided by Article X of the Statute and Rule XVII below; - (i) any request for oral proceedings as provided by Article XII of the Statute and Rule XIII below; and - (j) any request for anonymity as provided by Rule XXII below. - Attachments and translations: - The Applicant shall include as attachments 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. If a document is not in English, the Applicant shall attach a certified English translation. The Applicant shall also attach a copy of any report and recommendation of the Grievance Committee in the matter. - Signatures and copies: - (a) The application shall be signed on the last page by the Applicant or the counsel or other representative, if any, whom he has designated. In the event of the Applicant’s incapacity, the required signature shall be furnished by his legal representative. - (b) Four additional copies of the application and its attachments shall be submitted to the Registrar. - Requirements and time limits: - An application shall include evidence that the Applicant has satisfied the requirements of Article V, and that the application is being submitted to the Tribunal within the time limits prescribed by Article VI, of the Statute. - Deficient applications: - If the application does not fulfill the requirements established in Paragraphs 1 through 5 above, the Registrar shall advise the Applicant of the deficiencies and give him a reasonable period of time in which to make the appropriate corrections or additions. If this is done within the period indicated, the application shall be considered filed on the original date. Otherwise, the Registrar shall: - (a) notify the Applicant that the period of time within which to make the appropriate changes has been extended, indicating the length of time thereof; - (b) make the necessary corrections when the defects in the application do not affect the substance; or - (c) by order of the President, notify the Applicant that the submission does not constitute an application and cannot be filed as such. - Transmission to the Fund: - Upon ascertaining that the formal requirements of this Rule have been met, the Registrar shall transmit a copy of the application to the Fund. ### Answer (Rule VIII) - Time for answer: - Once an application has been transmitted by the Registrar to the Fund, the Fund shall answer the application within forty-five days of receipt unless, upon request, the President sets another time limit. - Submission and attachments: - The Fund’s answer shall be submitted to the Tribunal and to the Applicant through the Registrar. The Fund shall include as attachments all documents referred to in the answer in accordance with the rules established for the application in Rule VII, unless the document has been attached to the application in which case reference should be made to the attachment number. - Signature and copies: - 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. - Transmission to Applicant: - Upon ascertaining that the formal requirements of this Rule have been met, the Registrar shall transmit a copy of the Fund’s answer to the Applicant. If these requirements have not been met, Rule VII, Paragraph 6 shall apply mutatis mutandis to the answer. - Content regarding procedural requests: - The Fund shall include in the answer its views on any requests for production of documents, oral proceedings, or anonymity that the Applicant has included in the application. - The Fund shall also include in the answer any of its requests, as permitted under these Rules, with respect to oral proceedings, anonymity or other matters. ### Reply (Rule IX) - Time for reply: - The Applicant may file with the Registrar a reply to the answer within thirty days from the date on which the answer is received by him, unless, upon request, the President sets another time limit. - Attachments: - The complete text of any document referred to in the reply shall be attached in accordance with the rules established for the application in Rule VII, unless the document has been attached to an earlier pleading in which case reference should be made to the attachment number. - Signature and copies: - The requirements of Rule VII, Paragraph 4 shall apply to the reply. - Transmission to the Fund: - Upon ascertaining that the formal requirements of this Rule have been met, the Registrar shall transmit a copy of the Applicant’s reply to the Fund. If these requirements have not been met, Rule VII, Paragraph 6 shall apply mutatis mutandis to the reply. - Costs and other matters: - If the Applicant seeks costs pursuant to Article XIV, Section 4 of the Statute, the amount and any supporting documentation shall be included. - The Applicant shall include his views on any requests that the Fund has made in its answer with respect to oral proceedings, anonymity or other matters. ### Rejoinder (Rule X) - Time for rejoinder: - The Fund may file with the Registrar a rejoinder to the reply within thirty days from the date on which the reply is received by it, unless, upon request, the President sets another time limit. - Attachments and formalities: - The complete text of any document referred to in the rejoinder shall be attached in accordance with the rules established for the application in Rule VII, unless the document has been attached to an earlier pleading in which case reference should be made to the attachment number. - The requirements of Rule VIII, Paragraphs 2 and 3, shall apply to the rejoinder. - Transmission to Applicant: - Upon ascertaining that the formal requirements of this Rule have been met, the Registrar shall transmit a copy of the Fund’s rejoinder to the Applicant. If these requirements have not been met, Rule VII, Paragraph 6 shall apply mutatis mutandis to the rejoinder. - Closure of pleadings: - Without prejudice to Rule XI, after the rejoinder has been filed, no further pleadings shall be received. - Costs: - The Fund shall include in the rejoinder its response to any requests for costs or other matters that the Applicant has included in the reply. ### Additional Pleadings (Rule XI) - President’s authority: - In exceptional cases, the President may, on his own initiative, or at the request of a party, call upon the parties to submit additional written statements or additional documents within a period which he shall fix. The additional documents shall be furnished in the original or in an unaltered copy and accompanied by any necessary certified translations. - Formal requirements and transmission: - The requirements of Rule VII, Paragraph 4, or Rule VIII, Paragraphs 2 and 3, as the case may be, shall apply to any written statements and additional documents. - Written statements and additional documents shall be transmitted by the Registrar, on receipt, to the other party or parties. ### Summary Dismissal (Rule XII) - Grounds and authority: - Pursuant to Article X, Section 2(d) of the Statute, the Tribunal may, on its own initiative or upon a motion by the Fund, decide summarily to dismiss the application if it is clearly inadmissible. - Motion timing and effect: - The Fund may file such a motion within thirty days of its receipt of the application. The filing of the motion shall suspend the period of time for answering the application until the motion is acted on by the Tribunal. - Formal requirements and transmission: - The complete text of any document referred to in the motion shall be attached in accordance with the rules established for the answer in Rule VIII. The requirements of Rule VIII, Paragraphs 2 and 3, shall apply to the motion. If these requirements have not been met, Rule VII, Paragraph 6 shall apply mutatis mutandis to the motion. - Upon ascertaining that the motion meets the formal requirements of this Rule, the Registrar shall transmit a copy to the Applicant. - Applicant’s objection: - The Applicant may file with the Registrar an objection to the motion within thirty days from the date on which the motion is received by him. - The complete text of any document referred to in the objection shall be attached in accordance with the rules established for the reply in Rule IX. The requirements of Rule VII, Paragraph 4, shall apply to the objection to the motion. - Upon ascertaining that the objection meets the formal requirements of this Rule, the Registrar shall transmit a copy to the Fund. - Further pleadings: - There shall be no further pleadings in respect of a motion for summary dismissal unless the President so requests. ### Oral Proceedings (Rule XIII) - When held: - Oral proceedings shall be held if, on its own initiative or at the request of a party and following an opportunity for the opposing party to present its views pursuant to Rules VII–X, the Tribunal deems such proceedings useful. - Publicity and privacy: - In accordance with Article XII of the Statute, oral proceedings shall be open to all interested persons, unless the Tribunal decides that exceptional circumstances require that they be held in private. - Witnesses and experts: - At a time specified by the President, before the commencement of oral proceedings, each party shall inform the Registrar and, through him, the other parties, of the names and description of any witnesses and experts whom the party desires to be heard, indicating the points to which the evidence is to refer. The Tribunal may also call witnesses and experts. - The Tribunal shall decide on any application for the hearing of witnesses or experts and shall determine, in consultation with the parties or their counsel or representatives, the sequence of oral proceedings. Where a witness is not in a position to appear before the Tribunal, the Tribunal may decide that the witness shall reply in writing to the questions of the parties. The parties shall, however, retain the right to comment on any such written reply. - Examination and declarations: - The parties or their counsel or representatives may, under the direction of the President, put questions to the witnesses and experts. The Tribunal may also examine witnesses and experts. - Each witness shall make the following declaration before giving evidence: - “I solemnly declare upon my honor and conscience that my testimony shall be the truth, the whole truth and nothing but the truth.” - Each expert shall make the following declaration before giving evidence: - “I solemnly declare upon my honor and conscience that my testimony will be in accordance with my sincere belief.” - President’s authority and limits: - The President is empowered to issue such orders and decide such matters as are necessary for the orderly disposition of cases, including ruling on objections raised concerning the examination of witnesses or the introduction of documentary evidence. - The Tribunal may limit oral proceedings to the oral arguments of the parties and their counsel or representatives where it considers the written evidentiary record to be adequate. ### Intervention (Rule XIV) - Who may intervene and timing: - Any person to whom the Tribunal is open under Article II, Section 1 of the Statute may, within thirty days of the issuance of the notice prescribed by Paragraph (f) of Rule IV (and, in exceptional circumstances, thereafter up until the closure of the written pleadings on petition to the President), apply to intervene in a case on the ground that he has a right which may be affected by the judgment to be given by the Tribunal. - Application process: - Rule VII, regarding the preparation and submission of an application shall apply mutatis mutandis to the application for intervention. - Transmission and views: - Upon ascertaining that the formal requirements of this Rule have been complied with, the Registrar shall transmit a copy of the application for intervention to the Applicant and to the Fund, each being entitled to present views on the issue of intervention within thirty days. At the request of a party or on his own initiative, the President may suspend the exchange of pleadings under Rules VII-X until the admissibility of the application for intervention has been decided. Upon expiration of the thirty-day period, whether or not the parties have replied, the Tribunal shall decide whether to grant the application to intervene. If the intervention is admitted, the intervenor shall thereafter participate in the proceedings as a party, and the schedule of pleadings shall be modified to accommodate his participation. - Invitation to intervene: - In the absence of an application for intervention, the Tribunal may invite the participation as an intervenor of any person to whom the Tribunal is open under Article II, Section 1 of the Statute and who has a right that may be affected by the judgment to be given by the Tribunal. The views of the Applicant and the Fund may be sought, in a manner consistent with Paragraph 3 of this Rule, on the question of whether an individual should be invited to intervene. If the intervention is admitted, the intervenor shall thereafter participate in the proceedings as a party, and the schedule of pleadings shall be modified to accommodate his participation. ### Amicus Curiae (Rule XV) - The Tribunal may, at its discretion, permit any person or persons, including the duly authorized representatives of the Staff Association, to communicate views to the Tribunal as amici curiae. - The Tribunal may permit an amicus curiae access to the pleadings of the parties. - The Tribunal shall enable the parties to submit timely observations on an amicus brief. ### Time Limits (Rule XVI) - Calculation and inclusions: - The calculation of time limits prescribed in these Rules of Procedure, all of which refer to calendar days, shall not include the day of the event from which the period runs, and shall include the next working day of the Fund when the last day of the period is not a working day. - Date of dispatch: - For the purpose of determining whether time limits have been met, the date of dispatch (whether by postal service or courier), when accompanied by proof thereof, shall be accepted as the date of filing the same as if the filing had been effected on that date by hand delivery to the Office of the Registrar. - Exceptional filings: - In exceptional circumstances, filing of pleadings by means other than postal service, courier or hand may be permitted by the Registrar in consultation with the President. *Administrative Tribunal of the International Monetary Fund — Rules of Procedure (2004).* ### 1. The Applicant, pursuant to Rule VII, Paragraph 2(h), may request ### imfat-5 - 1. The Applicant, pursuant to Rule VII, Paragraph 2(h), may request ### Production of Documents and Other Evidence - The Applicant, pursuant to Rule VII, Paragraph 2(h), may request the Tribunal to order the production of documents or other evidence which he has requested and to which he has been denied access by the Fund. - The request must contain: - a statement of the Applicant’s reasons supporting production, and - any documentation that bears upon the request. - The Fund shall be given an opportunity to present its views to the Tribunal pursuant to Rule VIII, Paragraph 5. - The Tribunal may reject the request if it finds that: - the documents or other evidence requested are irrelevant to the issues of the case, or - compliance with the request would be unduly burdensome, or - compliance would infringe on the privacy of individuals. - For purposes of deciding on the request, the Tribunal may examine in camera the documents requested. - 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 deemed useful to its judgment, within a time period provided for in the order. - The President may decide to suspend or extend time limits for pleadings to take account of a request for such an order. ### Judgments (RULE XVIII) - All deliberations of the Tribunal shall be confidential, in accordance with Article XIII of the Statute. - The judgment shall be adopted by majority vote. - Once the final text of the judgment has been approved and adopted: - the judgment shall be signed by the President and the Registrar, and - shall contain the names of the members who have taken part in the decision. - Any member differing as to grounds or conclusions, or dissenting from the judgment, may append a separate or dissenting opinion. - The judgment and any appended opinions shall be transmitted to the parties and to amici curiae. - The Registrar shall notify the Fund community of the judgment and any appended opinions and shall arrange for their expeditious publication. - Clerical and arithmetical errors in the judgment may be corrected by the Tribunal in accordance with Article XVII of the Statute. ### Revision of Judgments (RULE XIX) - A party may request revision of a judgment only if: - a fact or a document is discovered which by its nature might have had a decisive influence on the judgment of the Tribunal, and - at the time of the judgment the fact or document was unknown to the Tribunal and to the party making application for the revision, and - such ignorance was not the responsibility of that party. - The revision must be requested: - within six months from the date on which the fact or document is discovered, and - in any event, within one year from the date on which the party requesting the revision was notified of the judgment, unless, upon request, the President sets another time limit. - The procedure set forth in Rules VII through XI shall be applied, mutatis mutandis, to the request for revision. ### Interpretation of Judgments (RULE XX) - After a judgment has been rendered, a party may apply to the Tribunal requesting an interpretation of the operative provisions of the judgment, in accordance with Article XVII of the Statute. - The application shall be admissible only if it states with sufficient particularity in what respect the operative provisions of the judgment appear obscure or incomplete. - The Tribunal shall, after giving the other party or parties a reasonable opportunity to present views, decide whether to admit the application for interpretation. - If the application is admitted, the Tribunal shall issue its interpretation, which shall thereupon become part of the original judgment. ### Miscellaneous Provisions (RULE XXI) - The President shall, in consultation with the other members of the Tribunal, fix the dates of the Tribunal’s sessions. - The Tribunal, or when not in session the President after consultation where appropriate with members of the Tribunal, may in exceptional cases modify the application of these Rules, including any time limits thereunder. - The Tribunal, or when not in session the President, may deal with any matter not expressly provided for in the present Rules. ### Anonymity (RULE XXII) - An Applicant may request in his application that his name not be made public by the Tribunal (Rule VII, Paragraph 2(j)). - The Fund may request in its answer that the name of any other individual not be made public by the Tribunal (Rule VIII, Paragraph 6). An intervenor may request anonymity in his application for intervention. - Parties shall be given an opportunity to present their views to the Tribunal in response to a request for anonymity (Rule VIII, Paragraph 5; Rule IX, Paragraph 6). - The Tribunal shall grant a request for anonymity where good cause has been shown for protecting the privacy of an individual. ### Form of Application and Annexes (ANNEX A) - The FORM OF APPLICATION sets out information required concerning the personal status of the Applicant, including: - full name of Applicant; - where claim is based on another’s employment rights: name and official status of that person and relation of Applicant to that person; - address for proceedings, telephone number, fax number. - Official status section requires: - 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 decision, and authority responsible must be provided. - Channels of administrative review pursued and results must be stated. - Reasons why Applicant challenges the decision and its legality must be provided. - Statement of supporting facts must be included. - Relief or remedy sought must specify: - the amount of compensation, if any, claimed or specific performance requested, - in cases seeking measures other than payment of money, any exceptional circumstances that would warrant fixing an amount greater than three hundred percent (300%) of salary in accordance with Article XIV, Section 2 of the Statute, - costs as the Tribunal may award pursuant to Article XIV, Section 4 of the Statute. - Any request for production of documents (see Article X of the Statute and Rule XVII) should be included. - Any request for oral proceedings (see Article XII of the Statute and Rule XIII) should be included. - Any request for anonymity (see Rule XXII) should be included. - Annexes to be attached pursuant to Rule VII, para. 3: - The Applicant shall include as attachments all documents cited in the application in an original or in an unaltered copy and in a complete text unless part is obviously irrelevant. - If a document is not in English, the Applicant shall attach a certified English translation. - The Applicant shall also attach a copy of any report and recommendation of the Grievance Committee in the matter. - Any additional information the Applicant wishes to present may be included. ### Appointment of Representative and Counsel (ANNEX B) - Form of Appointment of Representative (and Counsel) authorizes a named representative [and counsel]* to: - file/maintain an application with the IMF Administrative Tribunal, - sign pleadings, appear before the Tribunal, and take all other necessary action in connection with pursuance of the case. - The designation takes effect immediately and remains in effect until revoked in writing and the Tribunal has been informed. - The form includes signature and date fields. *Administrative details appearing in the source include contact information for the Office of the Registrar, International Monetary Fund Administrative Tribunal, and publication metadata for Reports Volume V 2006 and Washington, D.C. 2009.* --- _Source: https://www.imf.org/-/media/files/imfat/imfat-5.pdf_