## Judgment No. 1994-1 ## Source details **Canonical URL:** [Judgment No. 1994-1](https://www.imf.org/-/media/files/imfat/j1994-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j1994-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j1994-1.pdf.json) --- ### Procedural history and jurisdictional posture - The Administrative Tribunal of the International Monetary Fund held its first judicial session in Washington, D.C., August 29-31, 1994. - The Tribunal that met to consider the case was composed of Judge Stephen M. Schwebel, President, and Judge Michel Gentot and Judge Agustín Gordillo, Associate Judges. - On March 14, 1994, Mr. "X" filed an Application; elements did not meet requirements of the Rules of Procedure. On April 13, 1994, he was advised and given until May 3, 1994 to file a corrected and amplified Application. A corrected and amplified Application was filed on May 3, 1994 and, pursuant to Rule VII, paragraph 6, the Application was considered filed on March 14, 1994. - The Application was notified to the Fund and transmitted to the Fund's General Counsel. On May 27, 1994, the Fund filed a Motion to Dismiss arguing lack of jurisdiction. - The Applicant filed an Objection to the Motion on July 5, 1994; the Fund filed a Response on July 25, 1994. By authority of Rule XXI, further pleadings were not permitted because both parties had made an equal number of submissions. - The case was placed on the agenda for the first judicial session on June 6, 1994. Oral proceedings were not held. - Pursuant to the Rules of Procedure, the Motion to Dismiss suspended the period for answering the Application; consideration was therefore confined to jurisdictional issues, with substantive aspects referred to only as necessary for disposition of jurisdictional issues. - Article XX of the Statute provides: - "The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if the channels of administrative review concerning that act have been exhausted only after that date." - "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." ### Undisputed factual background - In April 1985 the Applicant was advised that his termination as a member of the staff was justified but that the Fund would accept his resignation in lieu of termination. The Applicant submitted his resignation on June 5, 1985. - The Applicant was allowed to withdraw his resignation to file a grievance with the Grievance Committee, but was advised that the Director of Administration viewed him as culpable of serious misconduct and that he would be terminated effective September 30, 1985. - The Applicant appealed his termination to the Grievance Committee on September 16, 1985 and was placed on annual leave beginning October 1, 1985 pending the Committee's recommendation and the Managing Director's decision; when annual leave expired he would continue on leave without pay. - On February 14, 1986 the Grievance Committee issued a Report and Recommendation finding termination for just cause and recommending that the Applicant be given another, final, opportunity to resubmit his resignation effective September 30, 1985 in lieu of termination. The Managing Director accepted the recommendation; the Applicant was informed on March 3, 1986. Mr. "X" resigned effective September 30, 1985. - On March 20, 1986 the Director of Administration wrote that "your earlier resignation has been re-instated, and became effective on September 30, 1985", and offered an ex gratia payment of $10,000 under the Fund's Termination Benefits Fund. An attachment set forth the final financial settlement as of the date of resignation and included a credit for contributions to the Staff Retirement Plan after the effective date of resignation. - On April 21, 1986 the Fund's Senior Pensions Officer wrote that "Since you terminated your service with the Fund on September 30, 1985, you are credited with 15 years and 3 months of eligible service under the Staff Retirement Plan." The letter listed the amount of the Applicant's contributions and set forth pension options under the Staff Retirement Plan. - On May 8, 1986 the Applicant requested that his resignation take effect on January 8, 1986 to coincide with the expiration of accrued leave rather than September 30, 1985, asserting that his "position in the pension plan was adversely affected" and contending "that it is illegal for the Fund to withdraw contributions." - On June 12, 1986 the Director of Administration replied that the Applicant had initially resigned effective September 30, 1985, had been terminated with effect on that date, and, after the grievance process, had chosen to resign as of September 30, 1985; the Director described this as "a final disposition of the matter, and it will not be reopened." - In each of the years 1988, 1989, 1990, 1991 and 1992 the Applicant wrote regarding pension amounts; the Senior Pensions Officer provided the requested information and consistently treated pensionable service as terminating on September 30, 1985. - On April 26, 1993 the Senior Personnel Assistant supplied information on pension amounts; on April 29, 1993 the Applicant requested review of the pension calculation on the ground that his entitlements were computed on the basis of service ending September 30, 1985 despite contributions made during accrued leave. - On May 12, 1993 the Senior Personnel Assistant replied that records showed "everything related to your service after September 30, 1985 was reversed, and that your service terminated for all purposes with effect from that date" and enclosed the March 20, 1986 attachment noting the credit for the reversal of pension contributions. ### Respondent's contentions (Motion to Dismiss) - The Fund maintains the challenged act is the 1986 reversal of certain pension contributions and predates the Tribunal's jurisdictional commencement; therefore the Application is untimely under Article XX. - The fact that the 1986 act has financial effects within the period of the Tribunal's competence does not confer jurisdiction; continuing effects (e.g., pension payments) flow from the earlier decision and do not constitute a new administrative act. - Correspondence in 1993 confirming calculations was merely confirmatory and not a new act restarting any statute of limitations. - An individual decision is an administrative act; such a decision was made and clearly communicated in 1986, and the Applicant understood its effects (as evidenced by his May 8, 1986 letter). The Director of Administration characterized the arrangement as "a final disposition of the matter, and it will not be reopened." - Pension payments beginning at the end of 1993 are ministerial acts involving no decision; the bases of calculation were determined by the 1986 decision. ### Applicant's contentions (Opposition to Motion to Dismiss) - The Applicant asserts his pension is less than it should be because pension was calculated on service ending September 30, 1985 instead of January 1986 when accrued leave expired; contributions made between those dates were effectively reimbursed in the March 1986 settlement. - The Applicant relies on a provision he cites as Article 6, Section 2(c) of the Staff Retirement Plan, which provides: - "(c) Any and all contributions made to the Plan by the Employer shall be irrevocable and shall be held by the Employer in the Retirement Fund, to be used in accordance with the provisions of the Plan in providing the benefits and paying the expenses of the Plan, and neither such contributions nor any income therefrom shall be used for, or diverted to, purposes other than for the exclusive benefit of participants and retired participants or their beneficiaries or estates under the Plan, prior to the satisfaction of all liabilities with respect thereto." - The Applicant characterizes the Fund's 1986 treatment as a "threat" rather than a final decision and contends he was not on notice of unlawful treatment until December 1993 when the first pension payment was received; that was, he contends, the date on which the Fund committed its unlawful act. - The Applicant argues that until the reduced payment check was actually received no wrongdoing could be said to have occurred, and that any bookkeeping or clerical error might have been cured before the pension payment event. ### Tribunal's legal question and preliminary determination - The Tribunal must identify the administrative act whose legality is challenged and determine when that act was taken, because Article XX bars review of administrative acts taken before October 15, 1992. - The Tribunal concluded that the administrative act challenged by Mr. "X" is the Fund's 1986 decision to treat his period of pensionable service as terminating on September 30, 1985 and to reverse pension contributions made after that date. - The Tribunal stated that it is not at this stage expressing itself on the merits of that 1986 decision; the question for the Motion to Dismiss is whether the dispositive act was taken in 1986 or in 1993. - The Tribunal found it "clear" that the administrative act at issue was the 1986 decision to treat Mr. "X"'s period of pensionable service as terminating as of September 30, 1985 and to reverse pension contributions made thereafter. ### Tribunal analysis and findings - The Applicant later characterized the challenged administrative act as the calculation of his pension in 1993 and the issuance of pension payments beginning in December 1993 reflecting a period of pensionable service deemed to have ended September 30, 1985 rather than in January 1986 when his accrued leave expired. - The Applicant argued either that a 1986 decision affects him "now" or, alternatively, that in 1986 the Fund merely "threaten[ed]" to take a decision which could be reconsidered up to the time of the 1993 pension calculation and payment. - The Tribunal rejected these contentions, holding that: - The 1993 calculation was a purely arithmetical act governed by the 1986 decision as to the extent of Mr. "X"'s pensionable service. - Prior communications made clear that the remaining variable to be factored in was the effect of cost-of-living increases; otherwise the pension had been determined by the 1986 disposition. - The fact that the 1986 decision produces consequences felt later does not extend the Tribunal's jurisdictional commencement; otherwise the October 15, 1992 limitation would be meaningless because effects of pre-October 1992 acts may be felt years later. - The Applicant’s contention that the 1986 decision was open to reconsideration does not negate that the decision was taken when it was taken. - The Fund had officially informed the Applicant that the decision was "a final disposition of the matter and it will not be reopened." - Continued discontent and later renewal of a challenge cannot alter the fact that the administrative act was taken in 1986. ### Decision - The Administrative Tribunal of the International Monetary Fund, unanimously, decides summarily to dismiss the Application. - Signatories: - Stephen M. Schwebel, President - Michel Gentot, Associate Judge - Agustín Gordillo, Associate Judge - Philine R. Lachman, Registrar - Location and date of decision: Washington, D.C., August 31, 1994. *The Administrative Tribunal of the International Monetary Fund — Judgment No. 1994-1 (August 31, 1994).* ### Section 1 ### Judgment No. 1994-1 ### Procedural history and jurisdictional posture - The Administrative Tribunal of the International Monetary Fund held its first judicial session in Washington, D.C., August 29-31, 1994. - The Tribunal that met to consider the case was composed of Judge Stephen M. Schwebel, President, and Judge Michel Gentot and Judge Agustín Gordillo, Associate Judges. - On March 14, 1994, Mr. "X" filed an Application; elements did not meet requirements of the Rules of Procedure. On April 13, 1994, he was advised and given until May 3, 1994 to file a corrected and amplified Application. A corrected and amplified Application was filed on May 3, 1994 and, pursuant to Rule VII, paragraph 6, the Application was considered filed on March 14, 1994. - The Application was notified to the Fund and transmitted to the Fund's General Counsel. On May 27, 1994, the Fund filed a Motion to Dismiss arguing lack of jurisdiction. - The Applicant filed an Objection to the Motion on July 5, 1994; the Fund filed a Response on July 25, 1994. By authority of Rule XXI, further pleadings were not permitted because both parties had made an equal number of submissions. - The case was placed on the agenda for the first judicial session on June 6, 1994. Oral proceedings were not held. - Pursuant to the Rules of Procedure, the Motion to Dismiss suspended the period for answering the Application; consideration was therefore confined to jurisdictional issues, with substantive aspects referred to only as necessary for disposition of jurisdictional issues. - Article XX of the Statute provides: - "The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if the channels of administrative review concerning that act have been exhausted only after that date." - "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." ### Undisputed factual background - In April 1985 the Applicant was advised that his termination as a member of the staff was justified but that the Fund would accept his resignation in lieu of termination. The Applicant submitted his resignation on June 5, 1985. - The Applicant was allowed to withdraw his resignation to file a grievance with the Grievance Committee, but was advised that the Director of Administration viewed him as culpable of serious misconduct and that he would be terminated effective September 30, 1985. - The Applicant appealed his termination to the Grievance Committee on September 16, 1985 and was placed on annual leave beginning October 1, 1985 pending the Committee's recommendation and the Managing Director's decision; when annual leave expired he would continue on leave without pay. - On February 14, 1986 the Grievance Committee issued a Report and Recommendation finding termination for just cause and recommending that the Applicant be given another, final, opportunity to resubmit his resignation effective September 30, 1985 in lieu of termination. The Managing Director accepted the recommendation; the Applicant was informed on March 3, 1986. Mr. "X" resigned effective September 30, 1985. - On March 20, 1986 the Director of Administration wrote that "your earlier resignation has been re-instated, and became effective on September 30, 1985", and offered an ex gratia payment of $10,000 under the Fund's Termination Benefits Fund. An attachment set forth the final financial settlement as of the date of resignation and included a credit for contributions to the Staff Retirement Plan after the effective date of resignation. - On April 21, 1986 the Fund's Senior Pensions Officer wrote that "Since you terminated your service with the Fund on September 30, 1985, you are credited with 15 years and 3 months of eligible service under the Staff Retirement Plan." The letter listed the amount of the Applicant's contributions and set forth pension options under the Staff Retirement Plan. - On May 8, 1986 the Applicant requested that his resignation take effect on January 8, 1986 to coincide with the expiration of accrued leave rather than September 30, 1985, asserting that his "position in the pension plan was adversely affected" and contending "that it is illegal for the Fund to withdraw contributions." - On June 12, 1986 the Director of Administration replied that the Applicant had initially resigned effective September 30, 1985, had been terminated with effect on that date, and, after the grievance process, had chosen to resign as of September 30, 1985; the Director described this as "a final disposition of the matter, and it will not be reopened." - In each of the years 1988, 1989, 1990, 1991 and 1992 the Applicant wrote regarding pension amounts; the Senior Pensions Officer provided the requested information and consistently treated pensionable service as terminating on September 30, 1985. - On April 26, 1993 the Senior Personnel Assistant supplied information on pension amounts; on April 29, 1993 the Applicant requested review of the pension calculation on the ground that his entitlements were computed on the basis of service ending September 30, 1985 despite contributions made during accrued leave. - On May 12, 1993 the Senior Personnel Assistant replied that records showed "everything related to your service after September 30, 1985 was reversed, and that your service terminated for all purposes with effect from that date" and enclosed the March 20, 1986 attachment noting the credit for the reversal of pension contributions. ### Respondent's contentions (Motion to Dismiss) - The Fund maintains the challenged act is the 1986 reversal of certain pension contributions and predates the Tribunal's jurisdictional commencement; therefore the Application is untimely under Article XX. - The fact that the 1986 act has financial effects within the period of the Tribunal's competence does not confer jurisdiction; continuing effects (e.g., pension payments) flow from the earlier decision and do not constitute a new administrative act. - Correspondence in 1993 confirming calculations was merely confirmatory and not a new act restarting any statute of limitations. - An individual decision is an administrative act; such a decision was made and clearly communicated in 1986, and the Applicant understood its effects (as evidenced by his May 8, 1986 letter). The Director of Administration characterized the arrangement as "a final disposition of the matter" and stated that "it will not be reopened." - Pension payments beginning at the end of 1993 are ministerial acts involving no decision; the bases of calculation were determined by the 1986 decision. ### Applicant's contentions (Opposition to Motion to Dismiss) - The Applicant asserts his pension is less than it should be because pension was calculated on service ending September 30, 1985 instead of January 1986 when accrued leave expired; contributions made between those dates were effectively reimbursed in the March 1986 settlement. - The Applicant relies on a provision he cites as Article 6, Section 2(c) of the Staff Retirement Plan, which provides: - "(c) Any and all contributions made to the Plan by the Employer shall be irrevocable and shall be held by the Employer in the Retirement Fund, to be used in accordance with the provisions of the Plan in providing the benefits and paying the expenses of the Plan, and neither such contributions nor any income therefrom shall be used for, or diverted to, purposes other than for the exclusive benefit of participants and retired participants or their beneficiaries or estates under the Plan, prior to the satisfaction of all liabilities with respect thereto." - The Applicant characterizes the Fund's 1986 treatment as a "threat" rather than a final decision and contends he was not on notice of unlawful treatment until December 1993 when the first pension payment was received; that was, he contends, the date on which the Fund committed its unlawful act. - The Applicant argues that until the reduced payment check was actually received no wrongdoing could be said to have occurred, and that any bookkeeping or clerical error might have been cured before the pension payment event. ### Tribunal's legal question and preliminary determination - The Tribunal must identify the administrative act whose legality is challenged and determine when that act was taken, because Article XX bars review of administrative acts taken before October 15, 1992. - The Tribunal concluded that the administrative act challenged by Mr. "X" is the Fund's 1986 decision to treat his period of pensionable service as terminating on September 30, 1985 and to reverse pension contributions made after that date. - The Tribunal stated that it is not at this stage expressing itself on the merits of that 1986 decision; the question for the Motion to Dismiss is whether the dispositive act was taken in 1986 or in 1993. - The Tribunal found it "clear" that the administrative act at issue was the 1986 decision to treat Mr. "X"'s period of pensionable service as terminating as of September 30, 1985 and to reverse pension contributions made thereafter. *The Administrative Tribunal of the International Monetary Fund — Judgment No. 1994-1 (August 31, 1994).* ### Section 2 ### j1994-1 - Section 2 ### Facts of the case - The Fund, in settling financial accounts with Mr. ”X”, credited him with pension contributions made after September 1985 during the period of his accrued leave and deducted this credit from the total amount Mr. ”X” owed to the Fund. - By a written communication of May 8, 1986, Mr. ”X” contested the Fund's decision to take September 30, 1985 as the date on which the period of his pensionable service terminated, arguing among other points that treating his resignation as of September 30, 1985 rather than January 8, 1986 "adversely affected" his "position in the pension plan". - In that May 8, 1986 communication, the Applicant also contended that the Fund’s withdrawal of contributions from the Plan was "illegal". - The Tribunal notes that the assertion of illegality was voiced in 1986, more than five years before the commencement of the Tribunal's jurisdiction on October 15, 1992. ### Tribunal analysis and findings - The Applicant later characterized the challenged administrative act as the calculation of his pension in 1993 and the issuance of pension payments beginning in December 1993 reflecting a period of pensionable service deemed to have ended September 30, 1985 rather than in January 1986 when his accrued leave expired. - The Applicant argued either that a 1986 decision affects him "now" or, alternatively, that in 1986 the Fund merely "threaten[ed]" to take a decision which could be reconsidered up to the time of the 1993 pension calculation and payment. - The Tribunal rejected these contentions, holding that: - The 1993 calculation was a purely arithmetical act governed by the 1986 decision as to the extent of Mr. ”X”'s pensionable service. - Prior communications made clear that the remaining variable to be factored in was the effect of cost-of-living increases; otherwise the pension had been determined by the 1986 disposition. - The fact that the 1986 decision produces consequences felt later does not extend the Tribunal's jurisdictional commencement; otherwise the October 15, 1992 limitation would be meaningless because effects of pre-October 1992 acts may be felt years later. - The Applicant’s contention that the 1986 decision was open to reconsideration does not negate that the decision was taken when it was taken. - The Fund had officially informed the Applicant that the decision was "a final disposition of the matter and it will not be reopened." - Continued discontent and later renewal of a challenge cannot alter the fact that the administrative act was taken in 1986. ### Decision - The Administrative Tribunal of the International Monetary Fund, unanimously, decides summarily to dismiss the Application. - Signatories: - Stephen M. Schwebel, President - Michel Gentot, Associate Judge - Agustín Gordillo, Associate Judge - Philine R. Lachman, Registrar - Location and date of decision: Washington, D.C., August 31, 1994. --- _Source: https://www.imf.org/-/media/files/imfat/j1994-1.pdf_