## Judgment No. 1995-1 — Ms. “S”, Applicant v. International Monetary Fund, Respondent (May 5, 1995) ## Source details **Canonical URL:** [Judgment No. 1995-1 — Ms. “S”, Applicant v. International Monetary Fund, Respondent (May 5, 1995)](https://www.imf.org/-/media/files/imfat/j1995-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j1995-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/j1995-1.pdf.json) --- ### Procedure and case chronology - Tribunal composition: Judge Stephen M. Schwebel, President; Judges Nisuke Ando and Michel Gentot, Associate Judges. - Hearing dates: met on May 3, 4 and 5, 1995. - Key procedural dates: - August 3, 1994: Ms. “S” filed an Application with the Tribunal. - August 8, 1994: The Fund was notified of the Application. - President allowed 45 days for any Motion for Summary Dismissal and Objection thereto (instead of 30 days) because the case had been filed prior to amendment of Rule XII changing the period from 45 to 30 days. - September 22, 1994: The Fund filed a Motion to Dismiss. - September 26, 1994: Motion transmitted to Applicant. - November 14, 1994: Applicant filed an Objection to the Motion. - December 15, 1994: Fund filed a Response to Applicant's Objection. - January 17, 1995: Applicant filed a Rejoinder. - March 20, 1995: Case placed on agenda for forthcoming judicial session. - Oral proceedings on jurisdiction were declined because Rule XIII, paragraph 1 condition that they be "necessary for the disposition of the case" was not met. - Consideration confined to jurisdictional issues due to Fund's Motion to Dismiss; substantive aspects considered only as necessary for jurisdictional disposition. ### Undisputed and disputed facts - Undisputed facts: - Ms. “S” took a full-time contractual position with the Fund in 1986. - She worked part-time in a contractual position from September 15, 1988 until February 24, 1993. - She received an appointment to the staff on February 25, 1993. - March 24, 1993: She wrote to Mr. Rea (Director of the Administration Department) requesting that her contractual service be considered qualified service under the Staff Retirement Plan (SRP) on an exceptional basis. - April 19, 1993: Mr. Rea declined to accept her request. - September 9, 1993: She requested Mr. Rea, as Chairman of the Administration Committee of the SRP, to bring before that Committee her request that prior contractual service be considered as qualified service under the SRP either on an exceptional basis or, alternatively, that the SRP be amended with retroactive effect to recognize part-time contractual service. - May 4, 1994: The Secretary of the Administration Committee replied, refusing to grant exceptional treatment and declining to recommend an amendment to the SRP. - Disputed fact: - Applicant's position: the relevant SRP provision defining eligible service (Section 3.2(b)(ii)) was adopted on December 14, 1992, the date of the current, published text of the SRP. - Fund's position: the provision was originally adopted in 1974, and amended on a point not pertinent to Ms. “S” on April 30, 1991, with effect from May 1, 1991. The Fund supplied internal memoranda, minutes of Executive Board meetings, Staff Bulletins, Fact Sheets and other documents concerning the SRP as evidence. - Quoted text of disputed SRP provision (Section 3.2(b)(ii)): - "(b) ... eligible service of a participant shall include: (ii) any period that commenced prior to May 1, 1991, if that period is not less than three years and immediately preceded a period of contributory service, during all of which the participant was retained by the Fund as a consultant in full-time service, provided that the consultant was employed by the Fund on May 1, 1991." ### Respondent's principal contentions supporting Motion to Dismiss - Main arguments: - The regulation at issue pre-dates the establishment of the Tribunal; pursuant to Article XX, Section 1 of the Statute the Tribunal lacks jurisdiction to review the legality of a provision in effect prior to October 15, 1992. - A decision applying a regulation adopted prior to October 15, 1992 cannot be complained of even if taken subsequent to that date. - The current version of Section 3.2(b)(ii) was adopted on April 30, 1991, with effect from May 1, 1991; the element contested (the requirement of full-time service) has existed unchanged since 1974. - Allowing challenges to pre-October 15, 1992 terms or requests for exceptional treatment would contradict the legislative history of the Statute and the Tribunal's ruling in Mr. "X" v. International Monetary Fund (IMFAT 1994, Judgment No. 1). - The Administration Committee's consideration of Applicant's request did not constitute a "decision" for Tribunal jurisdiction because: - The Committee left existing policy in place; implementation of an existing policy is not a "decision" under the Statute. - The Applicant sought a recommendation to the Pension Committee rather than a final decision; the Committee's decline to recommend was not tantamount to a "decision." - Statutory citations relied upon: - Article II, Section 1: Tribunal competent to pass judgment on applications "by a member of the staff challenging the legality of an administrative act adversely affecting him; ..." - Article XX, Section 1: Tribunal not competent to pass judgment on applications challenging administrative acts taken before October 15, 1992. ### Applicant's principal contentions in opposition - Substantive claims advanced: - Challenges the decision of May 4, 1994 by the Administration Committee of the SRP. - Has exhausted all channels of administrative review. - Argues Section 3.2(b)(ii) discriminates against women by limiting pension credit to full-time employment (virtually all part-time staff affected being women). - Alleges the provision was arbitrarily, capriciously and discriminatorily applied to deny pension credit for otherwise creditable employment time. - Contends the provision was adopted and promulgated on December 14, 1992. - Administrative acts asserted to be illegal: - "the deliberate and intentional failure to amend the provision cited above when it was adopted on December 14, 1992, and the application of the illegal provisions of the SRP to me by the decision taken on May 4, 1994." - Relief requested: - Tribunal to instruct the Administration and Pension Committees to amend Section 3.2(b)(ii) by adding "or part-time" after the words "in full-time", and to include the entire period of Ms. “S”'s contractual service in her eligible service for pension purposes. - Applicant's view on Administration Committee action: - The refusal and failure of the Administration Committee to refer the matter to the Pension Committee constituted a "decision" for Article II purposes because she asserts "there is no other means available to staff of the Fund to have the Pension Committee consider an amendment to the Staff Retirement Plan except through the prior endorsement of the Administration Committee." ### Fund's response to Applicant's Objection and evidence production - Fund's contentions: - No requirement that the Administration Committee endorse or transmit a proposed amendment to the SRP for the Pension Committee to consider it. - The Administration Committee's refusal to recommend an amendment does not preclude the Applicant from raising the issue with the Pension Committee, which includes two members of staff. - Applicant has not shown that a refusal to amend a rule adopted prior to the Tribunal's effective date is a "decision" under Article II. - Even if decisions were taken after October 15, 1992, they necessarily import a challenge to the legality of a regulatory provision pre-dating that date and are barred by Article XX, Section 1. - Tribunal requested documents and information pursuant to Article X, Section 1 of the Statute and Rule XVII, paragraph 3; the Fund produced the requested documentation concerning decision-making procedure in SRP matters and communication to staff of changes in the SRP. ### Tribunal's jurisdictional findings and grounds of decision - Respondent's two principal jurisdictional arguments summarized as: - (a) no administrative act (no individual or regulatory decision) as required by Article II, Sections 1 and 2 of the Statute; and - (b) the pension provisions complained of pre-date October 15, 1992; Article XX, Section 1 bars consideration of their legality or applications. - Tribunal findings on "administrative act": - The Tribunal did not accept the Respondent's contention that no administrative act occurred. - The May 4, 1994 letter of the Secretary of the Administration Committee stating: "Section 3.2(b) of the Plan clearly requires that the individual must have been employed full-time by the Fund for the whole of the three-year period immediately preceding contributory service, and your service does not meet that test," reflected a decision. - The rejection of Applicant's request for an exception constituted a decision. - The Administration Committee's declination to transmit the Applicant's request to the Pension Committee for amendment constituted a decision. - Tribunal's task on Article XX timing: - Tribunal must resolve when the administrative act whose legality is challenged was taken for purposes of jurisdiction under the Statute; if the challenged act is effectively the application of a regulation adopted before October 15, 1992, Article XX, Section 1 may bar jurisdiction. - Historical background recognized by the Tribunal: - October 10, 1974: Chairman of the Administration Committee transmitted to the Chairman of the Pension Committee a proposal for amendment of Article 3 of the Plan ("Eligible Service") to give retroactive credit for substantial service rendered as a consultant immediately before joining the Plan. - Tribunal understands that, in Fund practice, the term "consultant" embraces contractual employees as well. ### Analysis of SRP amendments, part-time treatment, and legal effect - Background on amendments: - Relevant provision of the SRP was amended in 1991 and was explained in the Plan's Report on Operations as of April 30, 1991: "Changes were made to the provisions of Article 3 concerning retroactive participation in the Plan under certain conditions for participants formerly on contractual or temporary appointments." - Report explained abandonment of the classification "staff member on temporary appointment" and removal of the related provision. - Report stated contractual appointees' contracts typically "state that benefits deriving from the IMF employment are limited to those specified in the contract, the compensation paid makes some allowances for the absence of pension benefits, and a specific payment is made at the end of the contract in lieu of a pension." - Pension Committee recommended, and the Executive Board agreed, "that participants should not be allowed in the future to convert to eligible service periods of IMF employment during which they were ineligible to participate in the Plan." - The Report described a "grandfathering" exception applying to "all contractual persons who were employed by the Fund prior to May 1, 1991, if they ultimately would satisfy the conditions for validating contractual service." - Treatment of part-time contractual employees: - The "grandfathering" exception applied to those persons who were eligible for conversion before the change, i.e., "to full-time employees only." - The 1991 amendment "did not refer to or alter the situation of part-time contractual employees in respect of the Pension Plan." - 1974 text of Section 3.2 included a provision providing retroactive credit for periods of "not less than three years during all of which the staff member was retained by the Fund in full time service as a consultant or a temporary appointee" subject to validation and payment conditions. ### Legal conclusions and dispositive ruling - Jurisdictional law applied: - Both the 1974 amendment and the 1991 revision "pre-dated the establishment of the Tribunal." - Pursuant to "Article XX, Section 1 of the Statute," any complaint challenging the legality of an element of those provisions "is time barred." - Denial of requests for exceptional application or amendment of a "pre-existing" provision cannot confer jurisdiction on the Tribunal it otherwise lacks; a refusal to refer a request for amendment to the Pension Committee likewise cannot confer jurisdiction. - Article VI, Section 2 permits that "the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging the legality of an individual decision taken pursuant to such regulatory decision," but that proviso is "subject to the lex specialis of Article XX." - Scope limitation: - Tribunal, confined to jurisdiction, "is not empowered to consider the issue of whether a regulation of the Fund has given rise to gender discrimination, however inadvertent." - Dispositive decision: - The terms of Article XX, Section 1 of the Statute "require the Tribunal to dismiss the Application." - Decision: The Administrative Tribunal of the International Monetary Fund, unanimously, "decides summarily to dismiss the Application." *Administrative Tribunal of the International Monetary Fund, Judgment No. 1995-1 (May 5, 1995).* ### Section 1 ### Judgment No. 1995-1 — Ms. “S”, Applicant v. International Monetary Fund, Respondent (May 5, 1995) ### Procedure - The Administrative Tribunal of the International Monetary Fund, comprised of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, met on May 3, 4 and 5, 1995 to hear the case. - Key procedural chronology: - August 3, 1994: Ms. “S” filed an Application with the Tribunal. - August 8, 1994: The Fund was notified of the Application. - The President allowed 45 days for any Motion for Summary Dismissal and Objection thereto (instead of 30 days) because the case had been filed prior to amendment of Rule XII changing the period from 45 to 30 days. - September 22, 1994: The Fund filed a Motion to Dismiss. - September 26, 1994: Motion transmitted to Applicant. - November 14, 1994: Applicant filed an Objection to the Motion. - The President, under paragraph 8 of Rule XII, permitted each party one additional pleading. - December 15, 1994: Fund filed a Response to Applicant's Objection. - January 17, 1995: Applicant filed a Rejoinder. - March 20, 1995: Case placed on agenda for forthcoming judicial session. - The Tribunal declined the Applicant’s request for oral proceedings on jurisdictional issues because Rule XIII, paragraph 1 condition that they be "necessary for the disposition of the case" was not met. - Because of the Fund's Motion to Dismiss, consideration was confined to jurisdictional issues; substantive aspects were referred to only as necessary for jurisdictional disposition. ### Facts - Facts not in dispute: - Ms. “S” took a full-time contractual position with the Fund in 1986. - She worked part-time in a contractual position from September 15, 1988 until February 24, 1993. - She received an appointment to the staff on February 25, 1993. - March 24, 1993: She wrote to Mr. Rea (Director of the Administration Department) requesting that her contractual service be considered qualified service under the Staff Retirement Plan (SRP) on an exceptional basis. - April 19, 1993: Mr. Rea declined to accept her request. - September 9, 1993: She requested Mr. Rea, as Chairman of the Administration Committee of the SRP, to bring before that Committee her request that prior contractual service be considered as qualified service under the SRP either on an exceptional basis or, alternatively, that the SRP be amended with retroactive effect to recognize part-time contractual service. - May 4, 1994: The Secretary of the Administration Committee replied, refusing to grant exceptional treatment and declining to recommend an amendment to the SRP. - Fact in dispute: - Applicant's position: the relevant SRP provision defining eligible service (Section 3.2(b)(ii)) was adopted on December 14, 1992, the date of the current, published text of the SRP. - Fund's position: the provision was originally adopted in 1974, and amended on a point not pertinent to Ms. “S” on April 30, 1991, with effect from May 1, 1991. The Fund supplied internal memoranda, minutes of Executive Board meetings, Staff Bulletins, Fact Sheets and other documents concerning the SRP as evidence. - Quoted text of disputed SRP provision (Section 3.2(b)(ii)): - "(b) ... eligible service of a participant shall include: (ii) any period that commenced prior to May 1, 1991, if that period is not less than three years and immediately preceded a period of contributory service, during all of which the participant was retained by the Fund as a consultant in full-time service, provided that the consultant was employed by the Fund on May 1, 1991." ### Respondent's Contentions in Support of the Motion to Dismiss - Principal points summarized: - The regulation at issue pre-dates the establishment of the Tribunal; pursuant to Article XX, Section 1 of the Statute the Tribunal lacks jurisdiction to review the legality of a provision in effect prior to October 15, 1992. - A decision applying a regulation adopted prior to October 15, 1992 cannot be complained of even if taken subsequent to that date. - The current version of the SRP provision at issue, Section 3.2(b)(ii), was adopted on April 30, 1991, with effect from May 1, 1991; the element contested (the requirement of full-time service) has existed unchanged since 1974. - Allowing challenges to pre-October 15, 1992 terms or requests for exceptional treatment would contradict the legislative history of the Statute and the Tribunal's ruling in Mr. "X" v. International Monetary Fund (IMFAT 1994, Judgment No. 1). - The Administration Committee's consideration of Applicant's request did not constitute a "decision" for Tribunal jurisdiction because: - The Committee left existing policy in place; implementation of an existing policy is not a "decision" under the Statute. - The Applicant sought a recommendation to the Pension Committee rather than a final decision; the Committee's decline to recommend was not tantamount to a "decision." - Therefore there has been no "administrative act" and the Tribunal lacks competence. - Relevant statutory citation included in Respondent's submissions: - Article II, Section 1 of the Statute: "The Tribunal shall be competent to pass judgment upon any application: a. by a member of the staff challenging the legality of an administrative act adversely affecting him; ..." - Article XX, Section 1 of the Statute: "The Tribunal shall not be competent to pass judgment upon any application challenging the legality or asserting the illegality of an administrative act taken before October 15, 1992, even if the channels of administrative review concerning that act have been exhausted only after that date." ### Applicant's Contentions in Opposition to the Motion to Dismiss - Applicant's substantive claims (as advanced in the Application): - Challenges the decision of May 4, 1994 by the Administration Committee of the SRP. - Has exhausted all channels of administrative review. - Argues the SRP is illegal because Section 3.2(b)(ii) discriminates against women by limiting pension credit to full-time employment (virtually all part-time staff affected being women). - Complains the provision was arbitrarily, capriciously and discriminatorily applied to her to deny pension credit for otherwise creditable employment time. - Contends the provision was adopted and promulgated on December 14, 1992. - The illegal administrative acts challenged by Applicant: - "the deliberate and intentional failure to amend the provision cited above when it was adopted on December 14, 1992, and the application of the illegal provisions of the SRP to me by the decision taken on May 4, 1994." - Relief requested: - Tribunal to instruct the Administration and Pension Committees to amend Section 3.2(b)(ii) by adding "or part-time" after the words "in full-time", and to include the entire period of Ms. “S”'s contractual service in her eligible service for pension purposes. - Applicant’s argument on the Administration Committee's action: - In her Objection, Ms. “S” argues that the refusal and failure of the Administration Committee to refer the matter to the Pension Committee and the Executive Board did constitute a "decision" for Article II purposes because: - She asserts there is "no other means available to staff of the Fund to have the Pension Committee consider an amendment to the Staff Retirement Plan except through the prior endorsement of the Administration Committee." - By its decision of May 4, 1994, the Administration Committee blocked her access to the Pension Committee and thus its action was arbitrary, capricious and discriminatory. ### Fund's Response to Applicant's Objection - The Fund contends: - There is no requirement that the Administration Committee endorse or transmit a proposed amendment to the SRP for the Pension Committee to consider it. - The Administration Committee's refusal to recommend an amendment does not preclude the Applicant from raising the issue with the Pension Committee, which includes two members of staff. - The Applicant has not shown that a refusal to amend a rule adopted prior to the Tribunal's effective date is a "decision" under Article II. - Even if decisions were taken after October 15, 1992, they necessarily import a challenge to the legality of a regulatory provision pre-dating that date and are barred by Article XX, Section 1, consistent with the Tribunal's earlier judgment in Mr. "X" v. International Monetary Fund. ### Applicant's Rejoinder - Applicant asserts: - She followed the only procedure available to have the Pension Committee consider amendments to the SRP. - The SRP contains "no channel for administrative review of the arbitrary determinations of the Administration Committee of the Pension Committee. . ." - There exists no procedure concerning how pension decisions are made or reviewed, and proceedings are not open to staff. - She was not notified whether the Pension Committee was informed of, or reviewed, the decision on her request. - She discussed her case with some members of the Pension Committee. - She refers to a memorandum from the Assistant Director of Administration dated September 27, 1994 (after filing of the Application) informing her that her request would not be referred to the Pension Committee. - The Tribunal has jurisdiction because the Administration Committee's adverse decision was taken after October 15, 1992. ### Request for Documents and Information - Pursuant to Article X, Section 1 of the Statute and Rule XVII, paragraph 3 of the Rules of Procedure, the Tribunal requested the Fund to produce documents and information dealing principally with: - The decision-making procedure in matters concerning the SRP. - The communication to staff of changes in the SRP. - The requested documentation was provided by the Fund. - Relevant procedural provisions cited: - Article X, Section 1: "The Tribunal may require the production of documents held by the Fund, except that the Managing Director may withhold evidence if he determines that the introduction of such evidence might hinder the operation of the Fund because of the secret or confidential nature of the document. Such a determination shall be binding on the Tribunal, 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." - Rule XVII, paragraph 3: "The Tribunal may, subject to Article X, Section 1 of the Statute, order the production of documents or other evidence in possession of the Fund, and may request information which it deems useful to its judgment." ### Grounds of the Decision (Jurisdictional Findings) - The Respondent's two principal jurisdictional arguments: - (a) There was no administrative act (no individual or regulatory decision) as required by Article II, Sections 1 and 2 of the Statute. - (b) The pension provisions complained of pre-date October 15, 1992; thus Article XX, Section 1 bars the Tribunal from considering their legality or applications. - Tribunal's findings on "administrative act": - The Tribunal does not accept the Respondent's contention that no administrative act occurred. - The May 4, 1994 letter of the Secretary of the Administration Committee stating: "Section 3.2(b) of the Plan clearly requires that the individual must have been employed full-time by the Fund for the whole of the three-year period immediately preceding contributory service, and your service does not meet that test," reflected a decision. - The rejection of Applicant's request for an exception constituted a decision. - The Administration Committee's declination to transmit the Applicant's request to the Pension Committee for amendment constituted a decision. - Tribunal's task on Article XX timing: - The Fund contends that if decisions taken after October 15, 1992 necessarily import a challenge to a regulatory provision pre-dating October 15, 1992, they are barred by Article XX, Section 1. - The Tribunal must resolve when the administrative act whose legality is challenged was taken for purposes of its jurisdiction under the Statute. - Historical background note: - On October 10, 1974, the Chairman of the Administration Committee of the Staff Retirement Plan transmitted to the Chairman of the Pension Committee a proposal for amendment of Article 3 of the Plan ("Eligible Service") to give retroactive credit under the Plan for substantial service which a participant rendered as a consultant immediately before joining the Plan. - The Tribunal understands that, in the practice of the Fund, the term "consultant" embraces contractual employees as well. *Administrative Tribunal of the International Monetary Fund, Judgment No. 1995-1 (May 5, 1995).* ### Section 2 ### j1995-1 - Section 2 ### Background on Staff Retirement Plan (SRP) amendments - The relevant provision of the SRP was amended in 1991 and was explained in the Plan's Report on Operations as of April 30, 1991. - The Report stated: "Changes were made to the provisions of Article 3 concerning retroactive participation in the Plan under certain conditions for participants formerly on contractual or temporary appointments." - The Report explained abandonment of the classification of "staff member on temporary appointment" and removal of the related provision. - The Report explained that contractual appointees' contracts typically "state that benefits deriving from the IMF employment are limited to those specified in the contract, the compensation paid makes some allowances for the absence of pension benefits, and a specific payment is made at the end of the contract in lieu of a pension." - The Pension Committee recommended, and the Executive Board agreed, "that participants should not be allowed in the future to convert to eligible service periods of IMF employment during which they were ineligible to participate in the Plan." - The Report described a "grandfathering" exception applying to "all contractual persons who were employed by the Fund prior to May 1, 1991, if they ultimately would satisfy the conditions for validating contractual service." ### Treatment of part-time contractual employees - The "grandfathering" exception applied to those persons who were eligible for conversion before the change, i.e., "to full-time employees only." - The 1991 amendment "did not refer to or alter the situation of part-time contractual employees in respect of the Pension Plan." - The 1974 text of Section 3.2, as adopted in 1974, included a provision stating in part: "(b) Eligible service for a staff member shall include any period of not less than three years during all of which the staff member was retained by the Fund in full time service as a consultant or a temporary appointee and which immediately preceded a period of participating service, provided that the participant pays in full during such participating service and within ninety days of the commencement of his participating service, or by January 31, 1975, whichever is later, the amount he would have paid if he had been a participant throughout the entire period of such service plus regular interest thereon." ### Jurisdictional analysis under the Statute - Both the 1974 amendment to the Staff Retirement Plan and the 1991 revision of it "pre-dated the establishment of the Tribunal." - Pursuant to "Article XX, Section 1 of the Statute," the Applicant's complaint, insofar as it challenges the legality of an element of those provisions, "is time barred." - Denial of requests for exceptional application or amendment of a "pre-existing" provision cannot confer jurisdiction on the Tribunal it otherwise lacks; a refusal to refer a request for amendment to the Pension Committee likewise cannot confer jurisdiction. - The Tribunal relied on the principle from the judgment in the case of Mr. "X" v. International Monetary Fund that a current complaint about a rule which came into force before October 15, 1992, does not give rise to jurisdiction which otherwise is absent. - Article VI, Section 2 of the Statute permits that "the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging the legality of an individual decision taken pursuant to such regulatory decision," but that general proviso is "subject to the lex specialis of Article XX." - The Report of the Fund's Executive Board to the Board of Governors stated that the provision of Article VI is "subject to the provisions of Article XX" (at page 25 of the printed version). ### Tribunal's scope and dismissal - In a judgment confined to the question of jurisdiction, the Tribunal "is not empowered to consider the issue of whether a regulation of the Fund has given rise to gender discrimination, however inadvertent." - The terms of Article XX, Section 1 of the Statute "require the Tribunal to dismiss the Application." - Decision: The Administrative Tribunal of the International Monetary Fund, unanimously, "decides summarily to dismiss the Application." --- _Source: https://www.imf.org/-/media/files/imfat/j1995-1.pdf_