## Administrative Tribunal of the International Monetary Fund — Introduction (j2001-1)

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### Proceedings and admissibility issue
- Tribunal composition and sessions:
  - Judges: Stephen M. Schwebel (President), Nisuke Ando (Associate Judge), Michel Gentot (Associate Judge).
  - Tribunal met on March 29 and 30, 2001 to decide the Fund’s Motion for Summary Dismissal.
- Procedural history and deadlines:
  - Application filed with the Tribunal on October 31, 2000.
  - Application transmitted to Respondent on November 3, 2000.
  - Fund filed Motion for Summary Dismissal on December 11, 2000 (Rule XII); supplemented December 27, 2000 (transmitted January 2, 2001).
  - Applicant filed Objection on February 12, 2001; Additional Statements filed mid-February 2001 under Rule XI and Rule XXI.
  - President denied Applicant’s Amended Request for Documents on February 26, 2001 (Rule XVII, paras. 2 and 4).
  - President issued a Request for Information to the Fund on February 26, 2001 (Rule XVII, paras. 3 and 4); Fund responded March 9, 2001.
  - Tribunal decided not to hold oral proceedings on the Motion for Summary Dismissal (Article XII; Rule XIII).
- Central procedural question:
  - Whether the Estate of Mr. “D” exhausted available channels of administrative review as required by Article V, para. 1 of the Tribunal’s Statute.

### Factual background and contested communications
- Mr. “D”’s status and medical events:
  - Retired World Bank staff member enrolled under a family policy in the IMF’s Medical Benefits Plan (MBP).
  - Wife was an IMF staff member; she retired in 1996 and died in 1997; Mr. “D” remained enrolled.
  - May 1998: began treatment for metastasized lung cancer; developed pneumonia; placed on a ventilator.
  - Medically evacuated on June 2, 1998 to a Maryland hospital; died in September 1998.
- Family’s account of pre-evacuation coverage interactions:
  - May 18, 1998: family contacted United HealthCare (“UHC”) and IMF Staff Benefits Division seeking authorization for evacuation.
  - UHC allegedly told family evacuation would be covered if “medically necessary” and required a physician’s letter.
  - May 29, 1998: faxed letter from overseas attending physician stated evacuation was a “medical necessity” due to “extreme, life threatening nature of his condition.”
  - May 31, 1998: son faxed a credit card authorization for full payment.
  - June 1, 1998: family contends they were told “everything looked fine”; Respondent contends family understood cost would not be covered and were prepared to pay approximately $50,000 themselves.
- UHC and contractor determinations:
  - UHC letter dated June 2, 1998: after review, medical staff determined proposed air ambulance transportation was “not medically necessary” and therefore “not a covered expense.”
  - UHC criteria for medical necessity: 
    - “No other form of transportation is appropriate for the condition of the patient, and”
    - “Transportation is to the closest facility capable of managing the patient’s medical needs.”
  - UHC notified family of a right to appeal and described two (2) levels of appeal; required submission of medical information within sixty (60) days.
  - Appeal chronology:
    - July 25, 1998: family’s first-level appeal submitted.
    - August 22, 1998: UHC denied first-level appeal citing plan exclusion for transportation or travel.
    - October 7, 1998: second-level appeal by Ms. “D”.
    - October 20, 1998: UHC denied second-level appeal as a contractual coverage decision.

### Fund internal responses and independent review
- Contacts and alternative chronologies:
  - Family reported unreturned calls to Staff Benefits Division on May 18 and May 28, 1998.
  - June 1, 1998: son spoke with Mr. “E”, Fund Human Resources Officer; parties’ accounts differ on whether Mr. “E” indicated coverage or encouraged appeal.
  - Fund’s alternative chronology: World Bank HSD advised MBP would likely not cover evacuation; bank official offered to pay; HSD later confirmed transportation expenses were excluded under MBP.
- Independent external medical review:
  - December 14, 1998: Applicant requested independent outside medical expert review.
  - January 26, 1999: Mr. “E” informed Ms. “D” that Intracorp’s external physician review was “consistent with UHC’s denial of coverage,” finding transportation was not “absolutely necessary.”
  - January 26, 1999 letter reiterated: “medical evacuation is not a covered benefit under the Medical Benefits Plan (MBP) of the International Monetary Fund.”
  - Faxed letter contained no information about grievance or appeal procedures within the Fund; Applicant asserts she never received a hard copy.

### Applicant’s attempts at internal review and timeliness issues
- Ombudsperson contacts and awareness:
  - January 28, 1999: Applicant alleges Ombudsperson assured internal channels could be used upon return from overseas and did not mention deadlines.
  - Late 1999: Applicant contacted new Ombudsperson who provided GAO No. 31.
- Administrative review requests:
  - January 14, 2000: Ms. “D” requested administrative review by the Director of Human Resources under GAO No. 31 and sought waiver of time limits.
  - February 1, 2000: Director denied review under GAO No. 31, noting Section 6.03 requires written request to division chief within three months of being informed of the intended application of the benefit; Applicant had been informed more than 11 months earlier.
- Grievance Committee proceedings:
  - March 15, 2000: formal grievance filed.
  - April 26, 2000: Assistant Director argued grievance time-barred under GAO No. 31, Section 6.03.
  - May 10, 2000: Grievance Committee Chairman dismissed grievance for lack of jurisdiction due to failure to pursue mandatory administrative review timely.
- Appeals to senior management:
  - July 15, 2000: Applicant wrote to Managing Director and Deputy Managing Directors seeking waiver and remediation.
  - August 2, 2000: Applicant met with a Deputy Managing Director.
  - August 4, 2000: Deputy Managing Director denied request to overturn Grievance Committee ruling; noted Fund had never overturned a Grievance Committee ruling since 1980 and advised appeal to the Administrative Tribunal could be filed “within three months of the decision taken by the Grievance Committee,” with deadline for filing with the Tribunal “would be August 10, 2000.”
  - August 7, 2000: Registrar confirmed three-month filing period under Articles V and VI of the Statute.
  - Application filed with the Administrative Tribunal on October 31, 2000.
- Note: Applicant received notification in late June or early July, 2000, that a charge of $392 for medical services at a stopover would be reimbursed; family rejected the offer.

### GAO No. 31 (Rev. 3 (1995)) — scope, time limits, and remedies
- Purpose and access:
  - GAO No. 31, Section 1: to “...make recommendations to the Managing Director in order to facilitate the fair and expeditious resolution of disputes. ...”
  - GAO No. 31, Section 7.01.1 grants access to Grievance Committee to: (i) present and former staff members; (ii) successors in interest to deceased staff members to the extent entitled to assert staff rights; and (iii) enrollees in a benefit plan maintained by the Fund with respect to decisions arising under any such plan.
- Time-limit mechanics for benefit disputes:
  - Section 6.03: initial written request to division chief within three months after being informed of intended application of the benefit; division chief has 15 days to respond.
  - Section 6.04: request review by Director within 30 days after response or after 15-day deadline.
  - Section 6.05: channels exhausted for filing with Committee when response received or no response within 15 days of submission to Director.
  - Section 6.06: for decisions by Director or Managing Director, grievance may be filed within six months after the challenged decision.
  - Section 7.03: 60 days to submit a grievance to the Committee after administrative remedies exhausted (other than 6.06 cases).
- Extensions and waivers:
  - Section 6.07: time limits extended day for day for each day grievant is working on Fund business outside Washington D.C. or is in recognized leave status.
  - Section 6.07.1: time limits (except initiation of administrative review or filing under 6.06) may be extended with consent of the official or the staff member as applicable.
- Fund practice reported (as of end of 2000):
  - Approximately sixty-two grievances filed from 1980 through end of 2000.
  - Of these, only three were dismissed for failure to meet exhaustion requirements under GAO No. 31.
  - Sixteen grievances related to benefit questions; five of these related to the Medical Benefits Plan.
  - Fund asserts no record of any non-staff member grievances related to benefits, and no successor in interest to a deceased staff member filed a grievance since the 1995 revision permitting such persons to file.

### Jurisdiction ratione personæ — Tribunal’s interpretation (Article II)
- Statutory and commentary basis:
  - Article II, para. 1(a) and 1(b) define competence for staff members and enrollees/beneficiaries.
  - Article II, para. 2.c.(iii) defines “member of the staff” to include successors in interest to deceased staff members to the extent entitled to assert staff rights.
  - Commentary indicates non-staff enrollees in the MBP “for example” may bring Applications concerning decisions under benefit plans.
- Tribunal holding on scope:
  - Tribunal concludes it does have jurisdiction ratione personæ over the Estate’s claim under Article II for two reasons:
    - Commentary examples are not exhaustive and may include non-staff enrollees and successors in interest in the situation of Applicant.
    - Given the intent of the Statute and structure of the Fund’s benefit program, excluding a successor in interest to a non-staff enrollee would be anomalous.
  - Tribunal holds Article II of the Statute encompasses claims by a successor in interest to a non-staff member enrollee in a Fund benefit plan; Section 7.01.1 of GAO No. 31 should be interpreted to allow such claims.

### Exhaustion of remedies, Article V, and the Tribunal’s authority on exceptional circumstances
- Article V purpose and procedures:
  - Article V, para. 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.”
  - Section 2 and 3 define rules for exhaustion where staff complaint/grievance procedures apply or do not apply; Section 4 allows exhaustion by agreement between Managing Director and applicant.
  - Purpose: to give administration opportunity to redress and to build a detailed record for adjudication.
- Tribunal’s authority to consider exceptional circumstances:
  - Tribunal concludes it may consider “exceptional circumstances” that may excuse failures to comply with time limits in anterior administrative review procedures (paras. 102–103).
  - Constraint: exceptional circumstances “should not easily be found”; time limits are not mere guidelines and must be justified by cogent reasons (paras. 104–107).
  - Relevant evaluative factors include the extent of delay, nature of the excuse, credibility, and whether internal remedies would have allowed prompt resolution or development of evidence (paras. 106–108).
  - Article VI of IMFAT Statute permits waiver of Tribunal filing time limits in exceptional circumstances; Article V contains no explicit exceptional-circumstance clause, but Tribunal finds authority to assess exceptions for exhaustion purposes.

### Application of exceptional-circumstances analysis to Ms. “D”
- Applicant’s asserted grounds and Tribunal responses:
  1. Alleged Fund abuse of discretion in not invoking extensions/waivers:
     - Tribunal found waiver provision of Section 7.01.2 never used and Section 6.07.1 appears inapplicable to initial review initiation; Applicant failed to specify nature of alleged abuse beyond asserting her case was “special and unusual.” (paras. 109–111)
  2. Alleged misleading advice by the Ombudsperson (January 28, 1999):
     - Ombudsperson’s Terms of Reference limit being called as witness; Applicant provided no corroborating statement from the Ombudsperson; Tribunal gave limited weight to the allegation given Applicant’s subsequent six-month delay. (paras. 112–115)
  3. Alleged lack of notice and procedural information from the Fund and Mr. “E”:
     - Tribunal found relevant factors favor Applicant: she was not a Fund staff member and could not be assumed to have access to staff-targeted dispute-resolution information; Mr. “E”’s January 26, 1999 letter treated matter as closed and did not attach GAO No. 31 or explain further recourse. (paras. 116–124)
     - Tribunal observed lack of individual notification does not automatically excuse failure to comply but may be considered as part of exceptional-circumstances evaluation. (paras. 120–123)

### Tribunal’s assessment of exhaustion and admissibility
- Effect of Grievance Committee Chairman’s dismissal:
  - Tribunal may consider the Committee’s determination but is not bound by it when deciding whether channels of administrative review were exhausted under Article V.
  - Grievance Committee’s denial of jurisdiction is relevant evidence but not dispositive.
- Key findings on Applicant’s conduct and Fund obligations:
  - Tribunal found that “at each stage in which Applicant was informed of the requisite procedures, she conformed to the deadlines.” (Para. 125)
  - Applicant expressly attempted to invoke administrative review procedures; conduct did not represent “casual treatment of the relevant legal requirements.” (Para. 125)
  - Tribunal concluded the Fund should have informed Ms. “D” of options and provided GAO No. 31 at the time Mr. “E” communicated the external medical examiner’s report; failure to do so was improper and gave the impression the matter had reached “the end of the road.” (Para. 128)
- Remand vs. Tribunal adjudication:
  - Tribunal rejected Respondent’s proposal to remand to the Grievance Committee as inconsistent with precedent and unnecessary on the facts because Applicant had already sought Committee review and the Tribunal had an extensive documentary record. (Paras. 129–135)
  - Tribunal retained authority under Article X and Rule XVII to examine witnesses and request information if record later proved inadequate. (Para. 135)

### Decision on Motion for Summary Dismissal and procedural aftermath
- Outcome:
  - The Fund’s Motion for Summary Dismissal is denied. (Para. 136)
- Consequent procedural steps:
  - Pleadings to resume under Rules VIII – X of the Tribunal’s Rules of Procedure.
  - Fund’s Answer on the merits, Applicant’s Reply, and the Fund’s Rejoinder to follow according to the prescribed schedule.
- Decision details:
  - Signed by Stephen M. Schwebel (President), Nisuke Ando (Associate Judge), Michel Gentot (Associate Judge), Celia Goldman (Registrar).
  - Washington, D.C. March 30, 2001.

*Source: Administrative Tribunal of the International Monetary Fund — Introduction (j2001-1).*

### Introduction

### Introduction (j2001-1)

### Proceedings and admissibility issue
- The Administrative Tribunal of the International Monetary Fund met on March 29 and 30, 2001, composed of Judge Stephen M. Schwebel, President, and Judges Nisuke Ando and Michel Gentot, Associate Judges, to decide a Motion for Summary Dismissal brought by the International Monetary Fund.
- The Fund’s Motion for Summary Dismissal contends that the Estate of Mr. “D” failed to exhaust available channels of administrative review, as required by Article V, para. 1 of the Tribunal’s Statute.
- A Motion for Summary Dismissal suspends the period for answering the Application until the Motion is acted on by the Tribunal; at this stage the Tribunal’s consideration is limited to admissibility.
- Key procedural dates and Rule citations:
  - Application filed with the Tribunal on October 31, 2000.
  - Application transmitted to Respondent on November 3, 2000 (per Tribunal Rules of Procedure).
  - Fund filed a Motion for Summary Dismissal on December 11, 2000, pursuant to Rule XII.
  - President of the Tribunal granted the Fund a one-week extension to file the motion pursuant to Rule XXI, para. 2.
  - The Fund supplemented the Motion on December 27, 2000; the supplemented Motion was transmitted to Applicant on January 2, 2001.
  - Applicant filed an Objection on February 12, 2001.
  - Additional Statements by both parties were filed in mid-February 2001 under Rule XI and Rule XXI.
  - The Tribunal decided not to hold oral proceedings on the Motion for Summary Dismissal, as oral proceedings were not “necessary for the disposition of the case” at the admissibility stage (Article XII; Rule XIII).

### Administrative review and Grievance Committee actions
- The Estate of Mr. “D”, represented by Executrix Ms. “D” (Mr. “D”’s daughter), sought administrative review after denial of a claimed evacuation benefit:
  - In January 1999, following internal appeals to United HealthCare (“UHC”) and review by an outside consultant, a Fund personnel officer informed Ms. “D” that the claimed evacuation benefit had been denied.
  - Almost one year later, Ms. “D” sought administrative review directly from the Fund’s Director of Human Resources; the Director denied the request because she had failed to seek review by the Division Chief within three months of the benefit’s denial, as required by Fund administrative review procedures.
- Ms. “D” subsequently filed a grievance with the Fund’s Grievance Committee. The Chairman of the Grievance Committee held that the Committee lacked jurisdiction because she had failed to pursue the mandatory administrative review process in a timely manner.

### Tribunal document-production and information requests
- Procedural handling of document requests and information:
  - Applicant submitted an Amended Document Request on January 11, 2001; the Fund’s Response was received on January 19, 2001.
  - The President of the Tribunal denied Applicant’s Amended Request for Documents on February 26, 2001, under Rule XVII, paras. 2 and 4:
    - Applicant’s Amended Request encompassed five separate requests; three were denied as “clearly irrelevant,” one was dismissed as moot, and one was rejected as ambiguous.
  - On February 26, 2001, the President issued a Request for Information to the Fund under Rule XVII, paras. 3 and 4, to obtain context on the Grievance Committee’s decision-making and the Fund’s practice regarding time limits under GAO No. 31.
  - The Fund’s response to the Tribunal’s Request for Information was received on March 9, 2001; each party was then given a brief simultaneous period to submit Comments prior to the Tribunal’s March 29-30 session.

### Factual background of the dispute
- Mr. “D”’s status and medical events:
  - Mr. “D” was a retired World Bank staff member enrolled under a family policy in the IMF’s Medical Benefits Plan (MBP); his wife had been an IMF staff member.
  - Following his wife’s retirement in 1996 and her death in 1997, Mr. “D” remained enrolled in the Fund’s MBP.
  - In May 1998 Mr. “D” began treatment for metastasized lung cancer and traveled to his home country with his doctor’s permission; he developed pneumonia and had to be placed on a ventilator.
  - Family members described hospital conditions as “deplorable.”
  - Mr. “D” was medically evacuated on June 2, 1998, to a Maryland hospital where he had previously received treatment; he died in September 1998.
- Disputed pre-evacuation communications and coverage expectations:
  - Applicant’s account:
    - On May 18, 1998, Mr. “D”’s children contacted UHC and the IMF’s Staff Benefits Division seeking authorization for coverage of a medical evacuation.
    - On May 18, a UHC representative allegedly told Mr. “D”’s son that the evacuation would be covered if “medically necessary” and that a letter from the attending physician would be required.
    - On May 28, the same UHC representative allegedly confirmed the earlier conversation when the family prepared for evacuation.
    - On May 29, a faxed letter from the overseas attending physician stated that evacuation was a “medical necessity” due to the “extreme, life threatening nature of his condition”; the son allegedly confirmed receipt with UHC and was told that “everything looked fine.”
  - Respondent’s account:
    - The Fund contends that the family understood before the evacuation that its cost would not be covered by the Plan and that they could have cancelled the arrangements; the family was prepared to pay the full cost (approximately $50,000) themselves or with assistance from a family friend.
  - On May 31, 1998, Mr. “D”’s son faxed a credit card authorization for full payment to the medical transport company.
  - On June 1, 1998, a UHC representative reportedly informed the son that the claim had been denied and read a letter that was later sent to the family home.

### Central legal question before the Tribunal
- Whether the Application by the Estate of Mr. “D” is admissible under Article V, para. 1 of the Tribunal’s Statute because Applicant did not fully exhaust available channels of administrative review (including timely pursuit of Division Chief review and the Fund’s grievance procedures) prior to filing with the Tribunal.

*Source: Administrative Tribunal of the International Monetary Fund — Introduction (j2001-1).*

### 21.      The letter from UHC (dated June 2, 1998) responded to the family’s “request for a

### 21. The letter from UHC (dated June 2, 1998) responded to the family’s “request for a predetermination of benefits for reimbursement of the proposed air ambulance transportation under International Monetary Fund’s benefit plan,” noting that the plan “authorizes United HealthCare to determine at its own discretion if a service or supply is medically necessary.” The letter concluded: “After review of the medical documentation submitted, the medical staff has determined that the proposed course of treatment is not medically necessary and, therefore, not a covered expense. Air ambulance transportation services are medically necessary for critically ill and injured patients requiring transportation in the following situations:
1.No other form of transportation is appropriate for the condition of the patient, and
2.Transportation is to the closest facility capable of managing the patient’s medical needs.” Additionally, the letter stated: “You have the right to appeal this determination as outlined in your Summary Plan Description. You may initiate an appeal with United HealthCare by following the procedure outlined below. United HealthCare offers two (2) levels of appeal. At each level, your appeal will be reviewed by a United HealthCare Medical Director or an independent medical consultant. To do so, please submit the following medical information within sixty (60) days of receipt of this notice. ...”

### Denial of coverage and subsequent appeals to United HealthCare (UHC)
- UHC’s June 2, 1998 decision: medical staff determined the proposed air ambulance transportation was “not medically necessary” and therefore “not a covered expense.”
- UHC described air ambulance as medically necessary only when:
  - “No other form of transportation is appropriate for the condition of the patient,” and
  - “Transportation is to the closest facility capable of managing the patient’s medical needs.”
- UHC notified the family of a right to appeal and described two (2) levels of appeal; appeals must submit required medical information within sixty (60) days.
- Family proceeded with evacuation on June 2 despite denial; family believed evacuation could not be stopped because of the patient’s “seriously compromised condition.”
- Appeal chronology and outcomes:
  - July 25, 1998: family’s first-level appeal to UHC with detailed documentation and oncologist’s letter arguing medical necessity.
  - August 22, 1998: UHC denied the appeal citing plan exclusion: “benefits are not available for transportation or travel, except for the use of local ambulance service in connection with hospital confinement, medical emergencies, or as specified under the hospice care benefit.”
  - October 7, 1998: second-level appeal by Ms. “D” following the patient’s death in September; highlighted inconsistency between June 2 denial (medical necessity) and August 22 denial (contractual exclusion).
  - October 20, 1998: UHC denied second-level appeal, stating “This is a coverage decision, governed by contract language in the benefit document... Reimbursement for the air ambulance services used is simply not available in the benefit document. Ambulance services explicitly provided for in the benefit document refer to local ambulance services, as contrasted with ambulance services to transport a patient from one country to another.”

### Family contacts with the Fund and internal Fund responses (May – June 1998)
- Family attempted to contact the Fund’s Staff Benefits Division; reported unreturned calls on May 18 and May 28, 1998.
- June 1, 1998: Mr. “D”’s son spoke with Mr. “E”, a Fund Human Resources Officer in the Staff Benefits Division.
- Parties’ accounts of the June 1 conversation differ:
  - Applicant’s account (affidavit of Mr. “D”’s son): Mr. “E” gave no definitive answer about coverage, promised to get back, and was “encouraging” regarding an appeal to UHC.
  - Mr. “E”’s affidavit: he considered the evacuation not covered because “transportation or travel, except by local ambulance service, was excluded under the MBP”; he stated no exception for “emergency” was possible as the patient’s condition was improving; he affirmed the son’s right to appeal UHC; he denied telling the son the case was unusual or promising to follow up on coverage.
- Fund’s alternative chronology:
  - On or about May 15, a World Bank official contacted the Bank’s Health Services Department (HSD) on the family’s behalf; HSD advised the patient would not be eligible for medical evacuation under an evacuation policy for active duty staff and that MBP would likely not cover the expense.
  - The Bank official offered personally to pay the expense if not covered.
  - After checking with the Fund’s benefits section, HSD confirmed to Mr. “D”’s son, sometime after May 18, that transportation expenses were excluded under the MBP.
  - Respondent contends the family decided on or about May 15 to evacuate irrespective of benefit coverage; an attempted May 17 evacuation to a closer destination was cancelled when the patient worsened; later evacuation to the United States occurred once the patient stabilized.

### Independent medical review and Fund determination (January 1999)
- December 14, 1998: Ms. “D” requested the Fund’s option to submit claim to an independent outside medical expert for final determination.
- January 26, 1999: Mr. “E” informed Ms. “D” by telephone and fax that Intracorp’s external physician review was “consistent with UHC’s denial of coverage,” concluding the patient’s condition did not justify medical evacuation; the Intracorp finding attached stated transportation “was not ‘absolutely necessary.’”
- The January 26, 1999 letter reiterated: “medical evacuation is not a covered benefit under the Medical Benefits Plan (MBP) of the International Monetary Fund” and that “the local ambulance benefit is extended to allow for transportation to the nearest location where medical care is available” only in very rare circumstances.
- The faxed letter contained no information about grievance or appeal procedures within the Fund. Ms. “D” asserts she never received a hard copy of the faxed letter; the Fund has not disputed nonreceipt.

### Applicant’s interactions with the Ombudsperson and timeline issues (January 1999 – 2000)
- January 28, 1999: Applicant alleges she spoke with the Fund’s Ombudsperson, told the Ombudsperson she would be overseas for “three to five months,” and was “assured” that “there were internal channels for appeal and that the matter could be handled upon my return.” Applicant alleges the Ombudsperson “never mentioned a time frame within which I had to pursue the matter.”
- Applicant asserts she would have pursued review from abroad or sought an extension had she been told of deadlines.
- Late 1999: Applicant contacted the Fund’s new Ombudsperson, who she says first informed her of the administrative review procedures and provided a copy of GAO No. 31.

### Administrative review request and denial based on timeliness (January – May 2000)
- January 14, 2000: Ms. “D” wrote to the Fund’s Director of Human Resources requesting “administrative review by the Director of Human Resources under GAO No. 31,” arguing confusion among administrators over coverage language and requesting a waiver of time limits for administrative review on an exceptional basis.
- February 1, 2000: Director of Human Resources denied review under GAO No. 31, stating:
  - GAO No. 31, Section 6.03 requires a written request to the division chief within three months after being informed of the intended application of the benefit.
  - Applicant was informed of the denial more than 11 months earlier and no written request for review had been received within the three-month time limit or since that time.
  - The Director noted she had requested an internal review of staff actions and concluded “it cannot be claimed that you believed that the cost of your father’s flight back to the United States would be covered under the MBP.”
  - The Director concluded: “I wish that I could respond more favorably to your request, but the provisions of the MBP, as well as the time limitations in GAO 31, preclude any other action on my part.”

### Grievance Committee proceedings and dismissal for lack of jurisdiction (March – May 2000)
- March 15, 2000: Ms. “D” filed a formal grievance with the Fund’s Grievance Committee challenging denial of MBP coverage and urging timeliness be excused as a “legal technicality.”
- April 26, 2000: Fund’s Assistant Director of Human Resources argued the grievance was time-barred under GAO No. 31, Section 6.03 and should be dismissed because the mandatory three-month filing requirement had not been met.
- May 10, 2000: Grievance Committee Chairman dismissed the grievance for lack of jurisdiction, emphasizing the mandatory procedural time limits and noting the Ombudsperson had no authority to waive those time limits.

### Applicant’s further appeals to senior management (July – August 2000)
- July 15, 2000: Ms. “D” wrote to the Fund’s Managing Director and Deputy Managing Directors appealing “in the interest of justice” for remediation of Human Resources’ handling and again sought waiver of time limits, arguing GAO No. 31’s time limit applies only to staff members and she was a non-staff member without access to internal policy documents or the IMF web-site.
- Applicant reiterated reliance on Mr. “E” and the Ombudsperson’s communications as reasons she did not invoke the administrative review process earlier and appealed for reimbursement on grounds of fairness, moral obligation, and compassionate grounds.

*International Monetary Fund*

### 48.      Applicant’s correspondence resulted in a meeting on August 2 between herself and one of

### j2001-1 - 48.      Applicant’s correspondence resulted in a meeting on August 2 between herself and one of

### Procedural chronology and key dates
- Applicant met with one of the Deputy Managing Directors on August 2.
- On August 4, the Deputy Managing Director denied Ms. “D”’s request to overturn the Grievance Committee ruling and to have the Committee reconsider her case.
- The Deputy Managing Director’s letter emphasized time limits and noted the Fund had never overturned a Grievance Committee ruling since 1980.
- The letter informed Ms. “D” that an appeal to the Administrative Tribunal could be filed “within three months of the decision taken by the Grievance Committee,” and that “the deadline for filing an appeal with the Tribunal would be August 10, 2000.”
- On August 7, Ms. “D” telephoned the Registrar of the Administrative Tribunal to clarify the filing deadline; the Registrar concluded that, pursuant to Articles V and VI of the Statute, Ms. “D” would have three months from the Deputy Managing Director’s letter of August 4 in which to file.
- The Application was filed with the Administrative Tribunal on October 31, 2000.
- Note: Applicant received notification in late June or early July, 2000, that a charge of $392 for medical services incurred at a stopover point during the evacuation would be reimbursed; the family rejected this offer.

### Deputy Managing Director’s reasons for denial
- Emphasis on compliance with time limits for pursuing administrative review:
  - The request for administrative review was not submitted until January 14, 2000, “or almost one year after the final administrative decision was taken.”
  - Time limits are not a legal technicality; they are present to ensure timely hearings before memories fade or evidence is displaced.
  - Lack of knowledge about the rules does not constitute a valid reason for exception to the rules.
  - Importance attached to maintaining the integrity of the Grievance Committee and consistency for “approximately 3,000 current employees and 1,000 pensioners.”
  - Statement that the Fund’s management had never overturned a Grievance Committee ruling since the Committee’s inception in 1980.

### Applicant’s principal contentions (merits and remedies sought)
- Merits:
  - Mr. “D”’s medical evacuation is covered under the Fund’s Medical Benefits Plan (MBP) as medically necessary, supported by attending physicians’ evidence.
  - United HealthCare (UHC), as Plan administrator, authorized the services as medically necessary and later took a contrary position; an independent reviewer applied the wrong standard of “absolute necessity.”
  - UHC and the IMF entered into a special contract for reimbursement conditioned on proof of medical necessity and reasonableness; UHC waived other conditions and is estopped (and acted as agent of the Fund).
- Remedies sought:
  - 100% of the submitted invoice for the air evacuation, plus interest.
  - Attorney’s fees, incidental damages, and costs of litigation.

### Applicant’s principal contentions opposing summary dismissal (procedural defenses)
- Applicant exhausted administrative remedies by seeking Grievance Committee adjudication and appealing to senior IMF management, including the Deputy Managing Director.
- Acknowledgement that “It is obvious and not contested that Applicant did not seek Administrative Review in a timely manner.”
- GAO No. 31 time limits do not contemplate extension to the estate of a deceased beneficiary who was not a staff member.
- Fund officers allegedly left Ms. “D” ignorant of the estate’s rights; she was not provided GAO No. 31 or access to the IMF internal website; Mr. “E” treated the matter as closed in his January 26, 1999 letter.
- The Fund’s former Ombudsperson allegedly misled Applicant about deadlines.
- Applicant believed minimum statute of limitations was one year.
- Respondent abused discretion by not using waiver and extension provisions under GAO No. 31.
- Failure to meet GAO No. 31 time limits is not an automatic bar to Tribunal jurisdiction.
- Applicant promptly complied with any rights of appeal of which the family was informed and has not sought advantage through delay.
- Respondent has had ample opportunity to review the case.
- The Administrative Tribunal should decide the merits rather than remand to the Grievance Committee.

### Respondent’s principal contentions (merits and support for dismissal)
- Merits:
  - MBP excludes transportation or travel expenses except for local ambulance service; consequently Mr. “D”’s evacuation is not covered.
  - The family understood they would be fully responsible for evacuation expenses before proceeding; Medical Duty Officer and the Human Resources Officer told Mr. “D”’s son the evacuation would not be covered (confirmed June 1, 1998).
  - External and internal medical reviews concluded no basis for an exception to the exclusion of transportation expenses under the MBP.
- Grounds for summary dismissal:
  - Applicant failed to exhaust available channels of administrative review within prescribed time limits; the Application should be dismissed for failure to meet the statutory requirement to exhaust administrative review for Tribunal jurisdiction.
  - Applicant did not request review by the Chief of the Staff Benefits Division within three months of the denial (GAO No. 31, Section 6.03); instead she sought review from the Director of Human Resources about nine months after the Division Chief deadline.
  - No basis exists to set aside time limits; failure to exhaust remedies was due solely to Applicant’s inaction and lack of knowledge is not a valid excuse.
  - Applicant is to be treated as a “staff member” for grievance submission timing and must be held to applicable time limits.
  - GAO No. 31, Section 6.07 does not permit tolling in this case.
  - Allegations that Fund misled Applicant are denied; the Ombudsperson’s statements should be disregarded, and the Ombudsperson may not be called as a witness.
  - GAO No. 31 is not applicable to a successor in interest to a non-staff member enrollee; the Grievance Committee therefore properly dismissed the grievance.
  - If the Tribunal finds the Grievance Committee should have considered jurisdictional time limits, parties should return to the Grievance Committee for factual and possibly merits examination.

### Tribunal’s jurisdictional consideration (Article II analysis)
- Article II provisions cited:
  - Article II, para. 1(a) and 1(b) define competence for staff members and enrollees/beneficiaries under Fund benefit plans.
  - Article II, para. 2.c.(iii) defines “member of the staff” to include successors in interest to deceased staff members to the extent entitled to assert staff rights.
- Commentary on the Statute:
  - Article II, para. 1(b) and related Commentary indicate non-staff enrollees in the MBP (e.g., a deceased staff member's widow who continues in MBP) may bring Applications concerning decisions under or with respect to benefit plans.
  - The Commentary also observes that successors in interest to staff members may pursue unresolved claims of staff members’ termination payments in the event of death.
- Central question:
  - Whether Article II, para. 1.b and para. 2.c.(iii) should be read together to permit the Estate of Mr. “D”, a successor in interest to a non-staff member enrollee in a Fund benefit plan, to bring an Application to the Tribunal.
- Observations:
  - The omission of successors in interest to non-staff enrollees from the express jurisdictional terms may be inadvertent or deliberate; legislative history does not clarify intent.
  - Comparative statutes of other international administrative tribunals do not clearly resolve the question; some statutes expressly grant jurisdiction over staff members, enrollees, and successors in interest to staff members, but do not expressly contemplate successors in interest to non-staff enrollees.

*Excerpt from the Administrative Tribunal (International Monetary Fund) judgment.*

### 63.      The Administrative Tribunal concludes that it does have jurisdiction ratione personæ over

### 63.      The Administrative Tribunal concludes that it does have jurisdiction ratione personæ over

### Jurisdiction ratione personæ — Tribunal conclusion
- The Administrative Tribunal concludes that it does have jurisdiction ratione personæ over Applicant’s claim under Article II of the Statute for two reasons:
  - The Commentary on the Statute provides examples of those covered that are not exhaustive: “Such individuals would a include ... non-staff enrollees in the MBP, for example ...” and other individuals in the situation, “for example” of the Applicant, could be “included”.
  - Given the intent of the Statute and the structure of the Fund’s benefit program to afford staff members and their families benefits, it would not make sense to exclude from the reach of the provisions in question a person who is a successor in interest to a non-staff enrollee.

### Exhaustion of remedies requirement — Article V (text and purpose)
- Article V (full text reproduced in the source) establishes exhaustion of administrative review as a prerequisite to filing with the Tribunal:
  - “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.”
  - Section 2 (for purposes of the Statute) defines administrative review exhaustion rules where the Fund’s channels include the staff complaints/grievances procedure, with three alternative triggering events (a, b, c) for deeming review exhausted.
  - Section 3 provides analogous rules where the available channels do not include the procedure described in Section 2.
  - Section 4 provides that all channels are deemed exhausted when the Managing Director and the applicant agree to submit the dispute directly to the Tribunal.
- Purpose and jurisprudential emphasis:
  - The requirement serves twin goals: providing opportunities for resolution of the dispute and building a detailed record for adjudication.
  - The Report of the Executive Board commentary states: “Article V prescribes an exhaustion of remedies requirement ... The exhaustion requirement is imposed by the statutes of all major administrative tribunals ... the tribunal is intended as the forum of last resort ... the administration has had a full opportunity to assess a complaint in order to determine whether corrective measures are appropriate.” (Report of the Executive Board, p. 23.)
  - IMFAT precedent (Ms. “Y” v. IMF, IMFAT Judgment No. 1998-1) recognizes that recourse to the Grievance Committee “... the advantage of producing a detailed factual and legal record which is of great assistance ...” (para. 42.)
  - WBAT authorities cited emphasize the management’s opportunity to redress alleged violations internally and the benefit to the tribunal of a developed evidentiary record (Donneve S. Rae (No. 2), Decision No. 132 (1993); de Jong, Decision No. 89 (1990)).

### Administrative review under GAO No. 31 (Rev. 3 (1995)) — scope and procedures
- GAO No. 31, Rev. 3 (1995) implements a comprehensive scheme for administrative review culminating in the Grievance Committee recommendation to the Managing Director; it was amended in 1995 in part to conform with the newly enacted Statute of the Administrative Tribunal.
- Purposes (GAO No. 31, Section 1): to “...make recommendations to the Managing Director in order to facilitate the fair and expeditious resolution of disputes. ...”
- Grievance Committee access (GAO No. 31, Section 7.01.1):
  - “Present and Former Staff Members. Any present or former staff member shall have access to the Grievance Committee.” For this purpose “staff member” includes:
    - (i) any person currently or formerly employed by the Fund whose letter of appointment states or stated that he or she shall be a member of the staff;
    - (ii) any successor in interest to a deceased member of the staff, to the extent that he or she is entitled to assert a right of such staff member against the Fund; and
    - (iii) any enrollee in a benefit plan maintained by the Fund as employer, with respect to decisions arising under any such plan.
  - The two latter categories (successor in interest and enrollees) were inserted with the 1995 revision.
- Jurisdiction predicated on exhaustion (GAO No. 31, Section 4.02):
  - The Committee has jurisdiction only after the grievant has exhausted the applicable channels of administrative review set forth in Section 6, unless the Managing Director (or designee) agrees that the grievance may be submitted directly to the Committee.
  - The Managing Director or the Director of Administration may, with prior consent of the grievant, refer a case directly to the Committee (Section 7.01.2).
- Time limits and procedures for benefit disputes (GAO No. 31, Sections 6.03–6.06 and 7.03):
  - 6.03: For staff benefits decisions, the staff member shall first submit a request for review in writing to the division chief in the Administration Department responsible for the benefit, clearly indicating pursuit of administrative remedies under GAO No. 31. The request must be submitted within three months after the staff member was informed of the intended application of the benefit. The division chief shall have 15 days to respond in writing.
  - 6.04: If dissatisfied or no response is received within 15 days, the staff member may request review by the Director of Administration. The written request must be submitted within 30 days after the response from the division chief or Department Head has been received or the deadline for a response has passed, whichever is earlier.
  - 6.05: Channels shall be considered exhausted, for filing a grievance with the Committee, when the staff member has received a response to his or her written request or no response has been received within 15 days of its submission to the Director of Administration.
  - 6.06: For decisions taken directly by the Director of Administration or the Managing Director (or designee), the staff member may file a grievance with the Committee within six months after the challenged decision was made or communicated, whichever is later.
  - 7.03: Other than for decisions under 6.06, a grievant shall have 60 days after administrative remedies have been exhausted to submit a grievance to the Committee.
- Time-limit extensions and waiver provisions (GAO No. 31, Section 6.07 and 6.07.1):
  - 6.07: Time limits in Sections 6.02, 6.03, 6.04 and 6.06 shall be extended, day for day, 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.
  - 6.07.1: Any of the time limits prescribed in this Section, except for those prescribed for the initiation of administrative review of a decision or for filing a grievance under Section 6.06, may be extended: (i) for the staff member, with the consent of the official to whom the request for review is addressed; and (ii) for the official responsible for responding, with the consent of the staff member.

### Fund practice and responses to Tribunal inquiries
- The Tribunal issued a Request for Information regarding the Fund’s practice on consent to direct Committee review and extensions/waivers of time limits under GAO No. 31.
- The Fund’s responses:
  - In all cases that proceeded to a decision on the merits by the Grievance Committee, grievants had complied with the necessary steps of administrative review.
  - The Managing Director or Director of Administration has not consented to review pursuant to Section 7.01.2 in any case that proceeded to a decision on the merits.
  - With respect to extensions/waivers (parts (b) and (c) of the Tribunal’s request), the Fund stated it was unable to consent to any extension of time limits under GAO No. 31 from 1980 until the 1995 Revision of the GAO, under which the applicable time limit for the initial submission of a benefit-related grievance to the Chief of the Staff Benefits Division was not extendable or waivable.
  - The Fund further stated: “... the current text continued the longstanding policy under GAO No. 31 against extending the initial submission of the benefit complaint to the Chief of the Staff Benefits Division.”
  - The Fund noted that where consent to extend time limits has been permissible, no case has challenged the failure to consent.
- Caseload statistics reported by the Fund (as of end of 2000):
  - Approximately sixty-two grievances have been filed from the initial issuance of GAO No. 31 in 1980 through the end of 2000.
  - Of these, only three have been dismissed for failure to meet exhaustion requirements under GAO No. 31.
  - Sixteen grievances have related to benefit questions of any kind, and five of these have related to the Medical Benefits Plan.
  - The Fund asserts it has no record of any non-staff member grievances related to benefits.
  - Neither has a successor in interest to a deceased staff member filed a grievance since GAO No. 31 was revised in 1995 to permit such persons to file grievances.

### Central contested issue in the case — was Applicant required to exhaust GAO No. 31?
- The Tribunal must determine what channels of administrative review, if any, were available to the Estate of Mr. “D” under the Fund’s internal law and whether Applicant, as successor in interest to a non-staff enrollee, was required to exhaust GAO No. 31.
- Respondent’s Motion for Summary Dismissal argument:
  - As representative of the Estate of Mr. [“D”] and successor in interest to the late Mr. and Mrs. [“D”], Applicant has recourse to the Grievance Committee concerning the denial of a benefit claim that Mr. [“D”] would have been able to pursue had he survived.
  - Therefore, Applicant is considered as a “staff member” for purposes of submitting grievances to the Grievance Committee, and must be held to the requirements applicable to all “staff members” (including beneficiaries or persons with derivative claims), including the time limits prescribed in the rules and the consequences of failing to meet those time limits.
- Factual concession in the case:
  - It is not contested that Applicant complied with all GAO No. 31 procedures and time limits except for the initial requirement of Section 6.03 to request administrative review by the Chief of the Staff Benefits Division within three months of the denial of the benefit.

*The Administrative Tribunal.*

### 81.      Likewise, in its correspondence with Ms. “D” prior to the litigation in the Administrative

### j2001-1 - 81.

### Applicability of GAO No. 31 to Applicant (Ms. “D”)

- Respondent repeatedly informed Ms. “D” that further review of her claim was precluded because she had failed to comply with the time limits of GAO No. 31.  These communications included:
  - the February 1, 2000 letter from the Director of Human Resources;
  - the Memorandum of April 26, 2000 from the Assistant Director of Human Resources to the Grievance Committee Chairman (copied to Ms. “D”);
  - the May 10, 2000 dismissal by the Chairman of the Grievance Committee of Applicant’s grievance; and
  - the Deputy Managing Director’s letter of August 4, 2000, ratifying that ruling.

- In its March 9, 2001 submission responding to the Tribunal’s Request for Information, Respondent asserted for the first time that GAO No. 31 is not applicable to Applicant’s claim, based on a strict reading of Section 7.01.1 of the GAO which provides in part:
  - “7.01.1 Present and Former Staff Members. Any present or former staff member shall have access to the Grievance Committee. For this purpose, the expression ‘staff member’ shall mean (i) any person currently or formerly employed by the Fund whose letter of appointment, whether regular or fixed-term, states or stated that he or she shall be a member of the staff; (ii) any successor in interest to a deceased member of the staff, to the extent that he or she is entitled to assert a right of such staff member against the Fund; and (iii) any enrollee in a benefit plan maintained by the Fund as employer, with respect to decisions arising under any such plan.”

- Respondent’s March 9 submission contends Ms. “D”’s grievance was “unreceivable” in the Grievance Committee not only because it was time-barred but also because “there is no provision in GAO No. 31, Rev. 3 (1995) for the bringing of a grievance by the successor in interest to a non-staff enrollee in a Fund benefit plan.”

- In a later pleading Respondent stated it will not assert the “defense” that GAO No. 31 was not applicable in this case.

- Tribunal holding: Article II of the Tribunal’s Statute encompasses claims by a successor in interest to a non-staff member enrollee in a Fund benefit plan; Section 7.01.1 of GAO No. 31 should be interpreted to allow such claims.  The Tribunal reasons that denying applicability would create an anomalous result permitting Ms. “D” to come directly to the Tribunal without proceeding through the administrative review process required of staff members, their successors in interest, and enrollees in Fund benefit plans.

- Tribunal conclusion: Applicant does fall within the reach of GAO No. 31, consistent with the position “predominantly and repeatedly taken in this case by the Fund itself.”  (The Tribunal reserves for a succeeding section whether Applicant’s unusual status should excuse her untimely initiation of the administrative review process.)

### Effect of Grievance Committee Chairman’s dismissal for untimeliness

- Preliminary question: What effect should the Grievance Committee Chairman’s decision that the Committee lacked jurisdiction have on the Tribunal’s assessment of whether Applicant met the requirements of Article V of the Tribunal’s Statute?

- Tribunal precedent and reasoning:
  - The Tribunal’s Explanatory Memorandum accompanying Order No. 1999-1 (Interpretation of Judgment No. 1998-1 (Ms. “Y”)) concluded that:
    - “... while the Grievance Committee judges its own jurisdiction for purposes of hearing a grievance (GAO No. 31, Section 4.04), the Administrative Tribunal necessarily decides for itself whether channels of administrative review have been exhausted, and in so doing it may consider the Grievance Committee’s determination.”
  - Mr. M. D’Aoust v. IMF, IMFAT Judgment No. 1996-1: the Tribunal held it does not serve as an appellate court reviewing Grievance Committee decisions because the Committee’s recommendations do not constitute “administrative acts” in the sense of Article II, Sections 1.a. and 2.a.
  - Mr. “V” v. IMF, IMFAT Judgment No. 1999-2 reaffirmed that the Tribunal makes independent findings and is not bound by the Grievance Committee’s reasoning or recommendations.

- Practical consequence:
  - The Grievance Committee’s dismissal denying jurisdiction is relevant but not necessarily dispositive of whether the Applicant exhausted administrative review under Article V.  The Tribunal may reconsider admissibility and weigh the record generated by the Grievance Committee as part of the evidence before it.

- Comparative jurisprudence:
  - Roman A. Alcartado v. Asian Development Bank, AsDBAT Decision No. 41 (1998): Appeals Committee’s decision is not binding on the Tribunal; the Tribunal examined facts and found the applicant should have known of the Bank’s decision so that the six-month filing period had begun, rendering the application inadmissible for failure to exhaust internal remedies.
  - In re Schulz, ILOAT Judgment No. 575 (1983): tribunal disregarded the appeals body’s view on timeliness and held the applicant had not exhausted remedies.
  - World Bank practice: Appeals Committee’s decision on its competence is subject to review by the Administrative Tribunal (SR 9.03, para. 4.01); the Appeals Committee is part of the administrative review process (Helen Lewin v. IBRD, WBAT Decision No. 152 (1996)).

### Importance of timely pursuit of administrative review

- Purpose of timeliness:
  - “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.” (Alcartado, AsDBAT Decision No. 41, para. 12.)

- Jurisprudential outcomes for untimeliness:
  - ILOAT (Schulz) held that failure to submit an internal appeal within the prescribed three-month time limit rendered the complaint irreceivable.
  - WBAT (Surinder N. Setia, Decision No. 134 (1993)) reaffirmed that failure to observe time limits for internal complaints or appeals results in non-compliance with exhaustion requirements and resultant inadmissibility.

### Exceptional circumstances and statutory provisions

- Some tribunals expressly permit consideration of exceptional circumstances to excuse untimely exhaustion or late filing:
  - WBAT Statute, Art. II, para. 2 (quotation excerpted) establishes that no application shall be admissible, except under exceptional circumstances as decided by the Tribunal, unless the applicant has exhausted remedies and filed within ninety days after specified triggering events.  The AsDBAT Statute, Article II, para. 3 mirrors the WBAT provision.
  - AfDBAT Statute provides similar language and expressly authorizes the Tribunal to decide in exceptional circumstances to waive time limits.

- ILOAT:
  - ILOAT Statute does not appear to provide a statutory basis for examining exceptional circumstances with respect to exhaustion or filing time limits; however, the ILOAT has examined exceptional circumstances where the organization’s appeals body had authority to waive time limits (In re Al Joundi, Judgment No. 259 (1975)).

- IMFAT Statute and commentary:
  - IMFAT expressly recognizes exceptional circumstances under Article VI (relating to time limits for filing an application) but makes no mention of exceptional circumstances in relation to Article V (requiring exhaustion of administrative remedies).
  - Article VI, para. 3: “In exceptional circumstances, the Tribunal may decide at any time, if it considers the delay justified, to waive the time limits prescribed under Sections 1 or 2 of this Article in order to receive an application that would otherwise be inadmissible.”
  - Commentary explains that the tribunal would have discretion, in exceptional circumstances, to waive time limits where the delay is justified (examples: extensive mission travel, prolonged illness, or other exigent personal circumstances), and that a staff member could request a waiver either before the deadline or after it had passed, predicated on a finding that the delay was justified.

### Key legal findings and procedural implications

- The Tribunal holds that successors in interest to non-staff enrollees in Fund benefit plans fall within the reach of GAO No. 31.
- The Grievance Committee’s determination that it lacks jurisdiction is relevant evidence but does not bind the Tribunal’s independent determination of whether administrative remedies were exhausted under Article V.
- Timely pursuit of administrative remedies is an important requirement tied to the institutional purpose of prompt review and correction; tribunals have regularly dismissed late or untimely administrative appeals.
- Exceptional circumstances can justify waivers of filing or exhaustion time limits in some tribunals; under the IMFAT Statute, exceptional circumstances are explicitly available to waive Article VI time limits, but Article V contains no explicit exceptional-circumstance provision.

*Excerpted from IMF Administrative Tribunal judgments and accompanying explanatory memorandum in j2001-1 - 81.*

### 102.      The question is whether, given the statutory basis for the waiver of its own time limit for

### The question is whether, given the statutory basis for the waiver of its own time limit for the filing of an application, the IMFAT may consider exceptional circumstances

### Authority to consider exceptional circumstances in anterior stages
- The Tribunal concludes that it has authority to consider the presence and impact of “exceptional circumstances” that may excuse failures to comply with time limits in anterior administrative review procedures.
- Reasoning:
  - Recourse procedures of the Fund are meant to be complementary and effective and are designed to afford remedies where merited, not to debar them; precluding the Tribunal from identifying error in anterior stages could unjustly leave an applicant without recourse.
  - There is support in the regimes of other administrative tribunals (for example, the International Labour Organisation’s senior Tribunal) for authority to find exceptional circumstances; no reason appears to deny this Tribunal that authority.
  - Article V, paragraph 1 of the Statute, which requires exhaustion of available channels of administrative review before filing with the Tribunal, provides a basis for the Tribunal to assess the performance of those channels.

- Holding:
  - The Administrative Tribunal may consider exceptional circumstances in assessing whether an Applicant has exhausted all channels of administrative review as required for admissibility under Article V of the Statute. (See paras. 102–103.)

### Standards and constraints for finding exceptional circumstances
- Exceptional circumstances “should not easily be found”; exhaustion of administrative remedies and adherence to time limits are important and should not be lightly dispensed with. (para. 104)
- Applicants with knowledge of internal review requirements may not ignore them (citing Mesch and Siy (No. 3) v. Asian Development Bank, AsDBAT Decision No. 18 (1996) paras. 34–35).
- Time limits are not mere guidelines; they cannot be treated as such (citing Mariam Yousufzi v. IBRD, WBAT Decision No. 151 (1996), para. 25). An applicant’s casual treatment of legal requirements does not excuse delay (citing Hans Agerschou v. IBRD, WBAT Decision No. 114 (1992), para. 45). (para. 104)
- The respondent’s lack of prejudice from delay does not excuse failure to meet filing deadlines; time limits are of mandatory public interest designed to organize judicial proceedings and prevent unnecessary delays (citing Yousufzi, paras. 25–26). (para. 105)
- Relevant factors in evaluating pleas of exceptional circumstances include “the extent of the delay and the nature of the excuse” (citing Ghulam Mustafa v. IBRD, WBAT Decision No. 195 (1998) para. 7), with examples:
  - Excusing a one-month delay due to serious illness. (para. 106)
  - Excusing delay where applicant’s mental illness was the subject of a disputed disability pension claim. (para. 106)
- Underlying purposes matter: internal remedies enable parties to appreciate each other’s positions, provide administration opportunity to ascertain causes of grievance and settle, and internal appeal bodies may elicit material evidence not otherwise available; “There must be cogent reasons for dispensing with internal remedies.” (citing Mesch and Siy (No. 3), para. 31). (para. 107)

### Application to Applicant “Ms. D”: evaluation of asserted grounds for exceptional circumstances
- Governing evaluative approach:
  - Factors must be evaluated in light of the extent and nature of the delay and the purposes of exhaustion requirements. (para. 108)

- Applicant’s contentions and Tribunal responses:
  1. Allegation: Fund abused discretion by not invoking extension and waiver provisions of GAO No. 31.
     - Tribunal findings:
       - The waiver provision of Section 7.01.2 has never been used; the extension provision of § 6.07.1 appears inapplicable to the period for initiation of review procedures. (para. 109)
       - Authority to waive or extend time periods under GAO No. 31 is discretionary; exercise or non-exercise of that discretion is reviewable by the Tribunal only for arbitrariness, caprice, discrimination, improper motivation, error of law or fact, or violation of fair and reasonable procedures. Applicant alleged abuse of discretion but failed to specify its nature beyond asserting her case was “special and unusual.” (para. 110)
       - The Tribunal does not require a finding of abuse of discretion to sustain exceptional grounds; however, no evidence suggests Respondent treated Applicant more stringently than others, and there were no others in similar circumstances. (para. 111)

  2. Allegation: The Ombudsperson misled Applicant on January 28, 1999 about time frame for initiating administrative review.
     - Facts and procedural constraints:
       - Applicant says she told the Ombudsperson she would be out of the country for three to five months and was told she could wait until return to initiate review. (para. 112)
       - Respondent asks the Tribunal to disregard these allegations because the Ombudsperson’s Terms of Reference prohibit being called as a witness or required to provide information in Tribunal proceedings; the Terms also permit the Ombudsperson to provide advice on procedures prior to filing but thereafter to refrain from assisting, and may not be called as a witness. (para. 113; footnote quotes para. 10 of Terms of Reference)
       - Applicant suggests the confidentiality provision is subject to waiver with the consent of the individual. (para. 113)
     - Tribunal assessment:
       - The Tribunal does not decide whether the former Ombudsperson could voluntarily provide information with consent, but notes Applicant apparently has not obtained any corroborating statement from the Ombudsperson. (para. 114)
       - Applicant’s assertion must be decided on credibility. Applicant vigorously pursued appeals with UHC and thereafter used other Fund channels beginning January 2000, meeting deadlines then. Although Applicant alleges being told she would be away for at most five months, she delayed pursuit for an additional six months. In view of that, the Tribunal is not disposed to accord weight to the Ombudsperson-exchange allegation. (para. 115)

  3. Allegation (Applicant’s strongest): She was not provided timely and sufficient notice of the Fund’s administrative review procedures; Mr. “E”’s January 26, 1999 letter treated the matter as closed and did not inform her of additional review procedures or provide GAO No. 31. (paras. 116–117)
     - Supporting statements:
       - Mr. “E”’s letter concluded: “I regret that this is not the outcome you had hoped for in this case.” Mr. “E” notes Applicant told him she intended to pursue further appeals but his letter provided no information as to requisite procedures; he expected to hear again but did not. (para. 117)
       - Affidavit of Applicant’s friend (who contacted Mr. “E” in October 1998) states: “The only option offered by Mr. [‘E’] was to submit the matter to an independent medical expert for review. At no time did Mr. [‘E’] mention the grievance committee process set out in GAO No. 31.” (para. 118)
     - Respondent’s counter:
       - Respondent contends Applicant, a highly educated claimant, did not make reasonable effort to inform herself of procedures. Applicant contends as non-staff she did not have access to usual channels of information. (para. 119)
     - Legal context on notice:
       - General rule: lack of individual notification of review procedures does not excuse failure to comply (citing Deborah Guya v. IBRD, WBAT Decision No. 174 (1997), para. 8). (para. 120)
       - Nonetheless, notice may be examined in evaluating exceptional circumstances (citing Setia, WBAT Decision No. 134 (1993) (para. 25)). (para. 121)
     - Tribunal’s assessment of Applicant’s position and context:
       - Relevant factors favoring Applicant:
         - Applicant was not and had never been a Fund staff member; she was daughter and executrix of a deceased non-staff enrollee in the Fund’s Medical Benefits Plan, and therefore could not be assumed to have access to staff-targeted dispute-resolution information or the Fund’s internal website. (para. 122)
         - The Fund’s internal website text (quoted) indicates that the claims administrator Willse & Associates has discretionary authority to construe MBP provisions, and that these procedures do not limit staff members’ rights under GAO No. 31; it indicates that “before filing a grievance, a staff member must first seek a review of the disputed claim through the Chief, Staff Benefits Division,” and that appeal procedures must be followed before seeking review of denial of a claim. (para. 122)
       - Comparative statutory practice:
         - UNAT Statute, Article 7, para. 4 provides an automatic extension: the ninety-day limit is extended to one year if heirs of a deceased staff member or a trustee file on the staff member’s behalf (quoted text). The IDBAT Statute, Article II, para. 3 provides a very similar extension from ninety days to one year. (para. 123)
       - Additional contextual considerations:
         - The nature of the contested benefit and the Plan administrator UHC’s internal appeals procedures might give rise to uncertainty as to recourse available through the Fund. After timely appeals with UHC, Applicant’s representative contacted a Human Resources Officer responsible for MBP; Mr. “E” offered, on an extraordinary basis, to send the claim for external review. Applicant understood this at the time as a “final determination” (evidenced by her letter of December 14, 1998). There is no evidence the Fund sought to change her understanding. (para. 124)

### Admissibility implication and evidentiary posture
- The Tribunal emphasizes:
  - Exceptional-circumstances findings require careful scrutiny and cogent reasons to dispense with internal remedies. (paras. 104, 107)
  - Credibility assessments and the extent and nature of delay are central to deciding whether exceptional circumstances exist. (paras. 108, 115)
  - The Tribunal may consider lack of notice and non-staff status of an applicant as relevant contextual factors, but established precedents caution that absence of explicit notification does not automatically constitute an exceptional circumstance excusing failure to comply with procedural time limits. (paras. 120–123)

*Administrative Tribunal decision (paras. 102–124).*

### 125.      It is significant that, at each stage in which Applicant was informed of the requisite

### Administrative Tribunal decision regarding Ms. "D": exhaustion of administrative remedies; Motion for Summary Dismissal denied

### Conformity with procedural deadlines and invocation of administrative review
- The Tribunal found that "at each stage in which Applicant was informed of the requisite procedures, she conformed to the deadlines." (Para. 125)
- Applicant expressly attempted to invoke administrative review procedures; her conduct therefore "cannot be said to represent 'casual treatment of the relevant legal requirements.'" (Agerschou) (Para. 125)
- The claimant’s conduct contrasted with Thomas Bredero v. International Bank for Reconstruction and Development, WBAT Decision No. 129 (1993), where letters "none of these in terms, or intent, sought administrative review." (Para. 125)
- The Fund had repeatedly reviewed the Estate of Mr. "D"’s claim, "creating opportunities for resolution of the dispute and building an evidentiary record." (Para. 125)

### Precedent and the need for flexible application of administrative review requirements
- The Tribunal relied on World Bank Administrative Tribunal authority (Charlotte Robinson v. International Bank for Reconstruction and Development, WBAT Decision No. 78 (1989)) to illustrate that organizational ambivalence about internal review procedures can justify flexible application of exhaustion requirements. (Paras. 126–127)
- Quoted WBAT reasoning emphasizes:
  - The Respondent’s ambivalent positions regarding whether the applicant received an "administrative decision" and whether internal review applied (paras. quoted in 127).
  - The Tribunal’s view that Staff Rule 9.01 "and its provisions for administrative review should not be construed in an overly technical manner" and that such procedures "should be applied flexibly in accordance with their terms and their spirit." (Paras. 36–37 quoted in 127)
  - The practical uncertainty staff members (or non-staff) may face about whether particular contacts or communications constitute reviewable administrative decisions. (Paras. 36–37 quoted in 127)

### Fund’s duty to inform and procedural failures in communicating recourse options
- The Tribunal concluded that "it was incumbent on the Fund to inform Ms. 'D'—who could not be assumed to know—of the specifics of the further recourse open to her." (Para. 128)
- The Fund should have informed Ms. "D" of options by the time Mr. "E" verbally informed and then faxed her of the denial of coverage based on the external medical examiner’s opinion. (Para. 128)
- The Fund’s failure to attach GAO No. 31 or information on recourse to the Administrative Tribunal to its denial was improper; the Fund "gave the impression to Ms. 'D' that, with the report of the external medical examiner, she had reached the end of the road." (Para. 128)

### Question of remanding to the Grievance Committee and scope of Tribunal authority
- Respondent argued that, if jurisdictional time limits warranted reconsideration, "the appropriate solution would be to direct the parties to return to the Grievance Committee for an examination of the relevant facts, including, if warranted, an examination of the merits." (Para. 129, quoted)
- Applicant opposed remand, asserting it would unduly prolong resolution and seeking adjudication on the merits. (Para. 129)
- The Tribunal found Respondent’s suggestion inconsistent with prior positions and precedent (D’Aoust), which rejects treating the Tribunal as an appellate body over the Grievance Committee. (Para. 130; note on D’Aoust summary in footnote 32)
- GAO No. 31, Section 4.04 vests in the Grievance Committee "the authority to decide upon its own jurisdiction for purposes of proceeding with a grievance," and the Tribunal will not treat itself as a routine remand body in derogation of that allocation. (Para. 131)
- The Tribunal distinguished Ms. "Y" (where returning to the Grievance Committee could produce a useful factual record) from the present case because Ms. "D" had already sought Grievance Committee review and the Grievance Committee Chairman dismissed her grievance for failure to exhaust prerequisite review on a timely basis. (Paras. 132–133)
- The Tribunal observed Respondent cited no authority empowering the Tribunal to remand the case to the Grievance Committee; directing Applicant to file with the Division Chief of the Staff Benefits Division was possible but, on the present facts, not warranted. (Para. 134)

### Adequacy of the evidentiary record and procedural next steps
- The Tribunal rejected Respondent’s concern that absence of a Grievance Committee decision on the merits would leave an inadequate evidentiary record: the Tribunal already "has the benefit of an extensive documentary record, including affidavits from several key individuals." (Para. 135)
- The Tribunal noted it could, under Article X of the Statute and Rule XVII of the Rules of Procedure, "examine witnesses and request information" if the factual record later proved inadequate. (Para. 135)
- Procedural outcome:
  - The Administrative Tribunal denied the Fund’s Motion for Summary Dismissal. (Para. 136)
  - Pleadings will resume under Rules VIII – X of the Tribunal’s Rules of Procedure; filing of the Motion had suspended the time for answering the Application until the Motion was acted on (Rule XII, para. 2). (Para. 136)
  - Consequently, the Fund’s Answer on the merits, Applicant’s Reply, and the Fund’s Rejoinder will follow according to the schedule prescribed by the Rules. (Para. 136)

### Decision
- "FOR THESE REASONS The Fund’s Motion for Summary Dismissal is denied."
- Decision signed by:
  - Stephen M. Schwebel, President
  - Nisuke Ando, Associate Judge
  - Michel Gentot, Associate Judge
  - Celia Goldman, Registrar
  - Washington, D.C. March 30, 2001

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_Source: https://www.imf.org/-/media/files/imfat/j2001-1.pdf_