## j2010-3 — Administrative Tribunal decision (Mr. Andreas Billmeier) ## Source details **Canonical URL:** [j2010-3 — Administrative Tribunal decision (Mr. Andreas Billmeier)](https://www.imf.org/-/media/files/imfat/j2010-3.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2010-3.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2010-3.pdf.json) --- ### Background and procedural history - Event: Administrative Tribunal of the International Monetary Fund adjudicated the case brought by Mr. Andreas Billmeier on February 8 and 9, 2010. - Subject: Applicant contested the Fund’s refusal of his request for voluntary separation under the Fund’s 2008 downsizing program. - Tribunal composition: Judge Stephen M. Schwebel, President; Judges Nisuke Ando and Michel Gentot. - Key dates and filings: - Applicant filed an Application with the Tribunal on August 24, 2009. - Respondent filed its Answer on October 8, 2009; Applicant submitted his Reply on November 16, 2009; Respondent’s Rejoinder filed December 16, 2009. - Decision signed in Washington, D.C., February 9, 2010. ### Factual findings and key statistics from the 2008 downsizing exercise - Aggregate volunteer separations and grade composition: - Total volunteers separated under the beneficial terms: 492 - All of the 206 volunteers in the A1-A8 grade range - All of the 110 volunteers in the B1-B5 grade range - 176 of the 275 volunteers in the A9-A15 grade range - Number declined due to over-subscription: 99 - Voluntary phase requests: 591 staff members requested separation. - Targeted staff reduction originally envisaged: 380 positions. - Restructuring budget constraint cited: $185 million multi-year restructuring budget approved by the Executive Board. - Budgetary accommodation claim: able to accommodate about 30 percent of volunteers in excess of the target number of 380 while staying within the three-year restructuring budget. - MARs-specific counts from Annex III (Macroeconomists A11–A15 not individually assessed): - 26 automatic acceptances among Grade A11-A15 macroeconomist volunteers - 50 automatic refusals among Grade A11-A15 macroeconomist volunteers - Total A11-A15 volunteers not individually assessed by the Institutional Panel: 76 - Total automatic acceptances in Annex III across job categories: 72 - Total automatic refusals in Annex III across job categories: 50 - Applicant-specific facts: - Employment start date: October 1, 2002 - Volunteer submission date: April 17, 2008 indicating May 13, 2009 as preferred last day - Notified of 3-year average MAR: 1.33 on March 3, 2008, placing him in the 98.5th percentile in his department - Notified of refusal by email on May 21, 2008 - Continued serving until resignation effective September 19, 2008; did not receive enhanced separation benefits ### Regulatory framework and process applied - Governing issuance: Staff Bulletin No. 08/03 (“Refocusing and Modernizing the Fund: the Framework for the Downsizing Exercise”), dated February 29, 2008, with Supplement 2 (May 6, 2008). - Design features: - Voluntary phase: March 1 through April 21, 2008; offers became irrevocable when voluntary phase closed. - Grounds for refusal: “(i) budgetary constraints; or (ii) the business needs of the Fund.” - Institutional Panel (IP) role: assess relative competency for fungible groups and make recommendations to Management. - A11–A15 macroeconomist (large fungible group) MARs-based procedure: - MAR definition: “The MAR (Merit-to-Allocation Ratio) is the ratio of a staff member’s actual merit increase to the amount budgeted for this purpose.” - Use of 3-year MAR averages to compute MARs percentiles; a uniform MARs cut-off percentile established to identify the MARs cut-off group. - Division into three groups: - Institutional Panel Assessment Group (Assessment Band): bottom 10-20 percent of MARs cut-off group plus a group equal in number to 10-20 percent whose MARs are highest among those below the MARs cut-off; includes volunteers without MARs averages and exceptional representations under paragraph 13(c). - Automatic acceptance group: volunteers whose MARs fall below the Assessment Band. - Automatic refusal group: volunteers whose MARs fall above the Assessment Band and who were not placed in the Institutional Panel Assessment Group. - Supplement 2 confirmation: budget accommodates additional volunteers up to 30 percent more than required reductions at the A9-A15 level; A9-A15 volunteers above that threshold will need to be refused. - Additional criteria for assessments (used by Department Directors and IP): - (i) reasons why MAR may not be indicative of relative performance - (ii) number of outstanding ratings 1998–2007 - (iii) trends in performance since May 1, 2007 relative to last APR - (iv) skills/experience required for the future that would be costly or difficult to replace - (v) length of time in grade - (vi) potential (capacity for growth, learning agility, ability to operate on strategic and tactical levels, degree of respect of peers, behaviors of inclusion and respecting diverse views) ### Procedural and evidentiary disputes - Applicant sought production of Annexes I–III to the IP Report and other documents, invoking Rule VII, para. 2(h) and Rule XVII of the Tribunal’s Rules of Procedure. - Respondent produced a redacted Annex III listing volunteers not individually assessed and offered unredacted Annexes to the Tribunal for in camera inspection. - Applicant requested oral proceedings and witness testimony; Respondent opposed oral proceedings, contending the documentary record and pleadings were sufficient. - Tribunal’s rules applied: - Rule XIII: “Oral proceedings shall be held if, on its own initiative or at the request of a party ... the Tribunal deems such proceedings useful.” - Tribunal considered written record adequate and limited oral proceedings accordingly. ### Legal issues, standards, and parties’ positions - Threshold admissibility issue: - Respondent argued Application inadmissible ratione temporis because Applicant should have filed within three months of decision if no administrative review channel existed. - Tribunal read Article VI with Article V of the Statute regarding exhaustion of administrative review; concluded Applicant reasonably pursued Grievance Committee and filed Tribunal Application within three months of Grievance Committee dismissal. - Merits standard of review for discretionary managerial decisions: - Tribunal assessed whether the refusal was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” - Applicant’s principal contentions included: - denial was erroneous, discriminatory, and illegal; - application of additional criteria only to A9–A15 inconsistent with rules; - IP erred and failed to apply additional criteria properly; - Grievance Committee wrongly dismissed for lack of jurisdiction. - Relief sought included rescission of decision, monetary relief equal to separation benefits had he separated effective September 19, 2008, tax allowances, moral and punitive damages of six months’ salary each, and legal costs. - Respondent’s principal contentions included: - Tribunal lacked jurisdiction ratione temporis; Fund properly exercised right of refusal according to governing regulations; MARs procedure correctly placed Applicant in automatic refusal group; budgetary treatment was proper. ### Tribunal’s analysis and conclusions - Admissibility: - Tribunal found the Application admissible; Applicant reasonably raised challenge before the Grievance Committee and filed within three months of its dismissal for lack of subject matter jurisdiction. - Tribunal declined to quash the Grievance Committee’s dismissal decision because it does not act as an appellate body over the Grievance Committee. - Discrimination and rational nexus test: - Tribunal applied the “rational nexus” requirement for classification schemes and found the Fund advanced tenable reasons to retain relatively more A9-A15 staff, establishing a rational nexus between the objective (refocusing mission, rebalancing grades) and differential treatment. - MARs-based differentiation and Assessment Band: - Tribunal concluded the MARs-based methodology and Assessment Band mechanism provided an adequate procedure to adjust for MARs marginality and to allow exceptional representations under paragraph 13(c). - Tribunal found Applicant’s own submission to the IP did not address the factors in paragraph 16 and paragraph 22 and provided no basis, consistent with applicable regulations, to place him in the Institutional Panel Assessment Group. - Budgetary discretion: - Tribunal held the Fund was entitled to allocate charges to the restructuring budget as part of managerial discretion; the restructuring budget’s objective was to accomplish the refocusing strategy rather than to maximize acceptances. - Tribunal rejected the argument that potential remaining restructuring funds created a legal right for refused volunteers to require additional acceptances. - Estoppel and misleading statements: - Tribunal found no persuasive ground for estoppel despite managerial encouragement to volunteer; staff were on notice the Fund reserved the right to refuse. - Outcome on the merits: - Tribunal concluded the refusal of Applicant’s voluntary separation request did not amount to an abuse of discretion under the applicable standard and internal law. - Final decision: The Application of Mr. Billmeier is denied; ruling unanimous. ### Tribunal disposition and signatories - Decision: Application denied. - Signatures on decision: - Stephen M. Schwebel, President - Nisuke Ando, Judge - Michel Gentot, Judge - Celia Goldman, Registrar - Date and place: Washington, D.C., February 9, 2010 *Administrative Tribunal of the International Monetary Fund, case concerning Mr. Andreas Billmeier — Administrative Tribunal decision (j2010-3).* ### Introduction ### Introduction ### Background of the case - On February 8 and 9, 2010, the Administrative Tribunal of the International Monetary Fund, composed of Judge Stephen M. Schwebel, President, and two members designated by him, Judges Nisuke Ando and Michel Gentot, met to adjudge the case brought against the International Monetary Fund by Mr. Andreas Billmeier, a former staff member of the Fund. - Applicant contests the Fund’s decision to refuse his request for voluntary separation under the terms of the Fund’s 2008 downsizing program. - Grades and staffing categories as used in the case: - Grades A1-A8 comprise support level positions. - Grades A9-A15 comprise professional positions. - B-levels comprise senior staff with managerial responsibilities. ### Applicant’s claims and legal theories - Applicant challenges: - Elements of the regulations implementing the Fund’s right of refusal following the over-subscription of the voluntary phase of the exercise, and their application in his individual case. - Budgetary decisions relating to the financing of the downsizing, contending they improperly limited the total number of staff who were able to separate under the terms of the downsizing program and substantially affected the outcome of his request. - As discriminatory the decision to permit all volunteers whose positions fell within Grades A1-A8 and B-levels to separate under the beneficial terms of the downsizing program while staff in Grades A9-A15 were subject to the Fund’s exercise of the right of refusal. - The process applied to differentiate among volunteers in the Grade A11-A15 fungible macroeconomist group. - That the Institutional Panel constituted under the downsizing acted erroneously and in disregard of relevant facts in recommending that his request be refused. - That the Fund’s Grievance Committee improperly failed to consider his claims on the ground that they fell outside its jurisdiction. - Applicant asserts his Application was timely filed with the Tribunal following exhaustion of available channels of administrative review. ### Respondent’s threshold objection and merits position - Respondent’s threshold objection: - The Application is inadmissible on the ground that Mr. Billmeier’s complaint did not fall within the subject matter jurisdiction of the Fund’s Grievance Committee, and therefore there were no channels of administrative review to exhaust; accordingly, the Application should have been filed with the Administrative Tribunal within three months of the decision to refuse Applicant’s request for separation pursuant to the downsizing exercise. - On the merits, Respondent maintains: - The refusal flowed directly from the proper application of the governing regulations, in particular those applicable to the Fund’s exercise of its right of refusal following the over-subscription of volunteers. - The applicable regulations represent a proper exercise of the Fund’s discretionary authority, free from impermissible discrimination, and based upon appropriate institutional considerations in “refocusing” the mission of the Fund. - Applicant’s MARs percentile placed him within the group of Grade A11-A15 fungible macroeconomists whose refusal was automatic; neither his department nor the Institutional Panel determined he should be placed in the “Assessment Group.” - Applicant made a submission to the Panel, but that submission did not provide any basis for placing him in the “Assessment Group.” - There was nothing improper in the budgetary treatment of the restructuring exercise. ### Procedural history and timing - On August 24, 2009, Mr. Billmeier filed an Application with the Administrative Tribunal, which was transmitted to Respondent on that day. - On August 28, 2009, pursuant to Rule IV, para. (f), the Registrar circulated within the Fund a notice summarizing the issues raised in the Application. - Respondent filed its Answer on October 8, 2009. The Registrar advised Respondent that the Answer did not fully meet the requirements of Rule VIII, para. 5, and provided a period for supplementation. Applicant submitted his Reply on November 16, 2009. The Fund’s Rejoinder was filed on December 16, 2009. ### Requests for production of documents (summary of requests and responses) - Applicant’s original document requests (as provided in the Application) included: 1. All relevant documents, emails, or other communication to/from the Managing Director, his office, or other Fund officials concerning the Applicant’s claims that discretionary decisions in the downsizing exercise were discriminatory or based on erroneous assessment. 2. All documentation regarding the Applicant’s case, including the Managing Director’s categorical acceptance of volunteers from A1-A8 and B-level grades, documentation of discussions concerning the separation program, and budgeting/contingency plans. 3. All documents showing any staff hired back after accepting voluntary separation, and all documents showing any staff withdrawing their application for voluntary separation. 4. All documents showing the Fund’s revisions to the voluntary separation program allowing B-level staff to remain at the Fund after May 13, 2009, as explained in paragraph 34 of the Applicant’s Brief in Support of the Application. 5. The October 7, 2008 email from the Director of OBP to the Applicant on the revised budget calculations for the downsizing exercise. 6. The report of the Working Group Reviewing the Size of Divisions and Support Across the Fund. 7. All documents regarding the Applicant’s submission to the Institutional Panel, what the Institutional Panel considered, and all documents from the Institutional Panel to the Managing Director concerning the denial of the Applicant’s request for voluntary separation. 8. All documents showing exactly how many staff members were granted voluntary separation, and how many were denied, including by grade level. - Procedural rules invoked for document production: Rule VII, para. 2(h) and Rule XVII of the Tribunal’s Rules of Procedure. - Respondent’s response to document requests: - Respondent accepted the document requests included in the Application and attached responsive documents to the Answer. - In its Rejoinder, the Fund appended a redacted copy of Annex III to the “Report and Recommendations of the Institutional Panel on the Exercise of the Right of Refusal” (May 16, 2008). - Respondent asserts the Annexes do not contain reasons for acceptance or denial of individual requests; Annexes I and II are lists of staff recommended for acceptance, and Annex III is a list of volunteers, including Applicant, who had not been placed in the Assessment Group and therefore were automatically accepted or refused in accordance with the methodology set out in Staff Bulletin 08/03, Supp. 2. - The Fund redacted names of other staff members from Annex III, provided the redacted Annex III to Applicant, and offered to provide all Annexes, unredacted, to the Tribunal for in camera inspection. - Status of document requests: - The redacted Annex III demonstrates that Applicant’s name was included among those volunteers automatically refused. - The Fund maintains a continuing objection to producing Annexes I and II to Applicant on privacy and lack of probative value grounds. - The record states: “Accordingly, no document requests appear to remain pending in the case.” ### Applicant’s additional document request (Annexes) and contested evidentiary issues - In his Reply, Applicant requested the Annexes to the Institutional Panel’s Report, asserting: - The Report states “[t]he recommendations of the IP [Institutional Panel] on individual volunteers resulting from its deliberations are appended separately in the Annex.” (Report, p. 1.) - Applicant contends the Annexes are necessary because they “show why the Applicant’s individual request was denied and how his ‘relative competency’ was erroneously assessed by the Panel.” - Applicant sought the Annexes even with redaction of staff names (except for Applicant’s), to reveal “all of the data the Panel relied on.” - Respondent’s position on Annexes: - Annexes I and II are lists of those volunteers recommended for acceptance; Annex III lists volunteers not individually assessed (automatically accepted/refused). - Respondent maintains Annexes I and II have no probative value for Applicant’s claims and asserts privacy interests weigh against producing them to Applicant. - Respondent produced a redacted Annex III showing Applicant listed among Grade A11-A15 fungible macroeconomists whose requests were automatically refused. ### Requests for oral proceedings and opposing positions - Applicant’s position: - Requested oral proceedings pursuant to Rule VII, para. 2(i) and Rule XIII. - Argues there are “critically relevant facts in dispute which can only be substantiated by the Annexes to the Panel’s Report, and the testimony of witnesses with first hand knowledge of the decision made against the Applicant.” - States oral proceedings are necessary because the Institutional Panel “erroneously assessed his request and failed to properly consider all of his relevant information,” producing a recommendation based on a “manifestly erroneous assessment of the information.” - Respondent’s position: - Opposes Applicant’s request for oral proceedings. - Argues there are no material facts in dispute because the contested decision flowed from the proper application of the regulations governing the downsizing process and the documentary record and pleadings fully address the issues. ### Central factual dispute framed by the parties - Applicant alleges his “relative competency” was erroneously and illegally assessed by the Institutional Panel and that additional documentary and testimonial evidence (Annexes and witnesses) are required to substantiate that claim. - Respondent maintains the denial resulted from automatic application of governing regulations based on Applicant’s MARs percentile, which placed him within the group of Grade A11-A15 fungible macroeconomists automatically refused, and that no departmental or Panel determination placed him in the “Assessment Group.” *Administrative Tribunal of the International Monetary Fund, case concerning Mr. Andreas Billmeier — Introduction.* ### 17. Rule XIII of the Tribunal’s Rules of Procedure provides that “[o]ral proceedings shall be ### j2010-3 - 17. Rule XIII of the Tribunal’s Rules of Procedure provides that “[o]ral proceedings shall be ### Procedural rules on oral proceedings and evidence - Rule XIII: “Oral proceedings shall be held if, on its own initiative or at the request of a party following an opportunity for the opposing party to present its views pursuant to Rules VII – X, the Tribunal deems such proceedings useful.” - The Tribunal considered that the extensive documentary record and the written pleadings provided a sufficient basis to decide the case. - Declarations required before giving evidence: - Each witness must declare: “I solemnly declare upon my honor and conscience that my testimony shall be the truth, the whole truth and nothing but the truth.” - Each expert must declare: “I solemnly declare upon my honor and conscience that my testimony will be in accordance with my sincere belief.” - Powers of the President: - “The President is empowered to issue such orders and decide such matters as are necessary for the orderly disposition of cases, including ruling on objections raised concerning the examination of witnesses or the introduction of documentary evidence.” - Tribunal may limit oral proceedings: - “The Tribunal may limit oral proceedings to the oral arguments of the parties and their counsel or representatives where it considers the written evidentiary record to be adequate.” ### Factual background — the Fund’s 2008 downsizing exercise - Aggregate volunteer separations and grade composition: - Total volunteers separated under the beneficial terms: 492 - All of the 206 volunteers in the A1-A8 grade range - All of the 110 volunteers in the B1-B5 grade range - 176 of the 275 volunteers in the A9-A15 grade range - Number of staff whose voluntary separation applications were declined due to over-subscription: 99 - The case of Mr. Billmeier and Mr. Faulkner-MacDonagh arose from this downsizing; both were among the 99 declined applicants. ### Regulatory framework implementing the 2008 downsizing — Staff Bulletin No. 08/03 - Staff Bulletin No. 08/03 (“Refocusing and Modernizing the Fund: the Framework for the Downsizing Exercise”), dated February 29, 2008: - Envisioned a “voluntary phase,” followed by a “mandatory phase.” - Voluntary window: March 1 through April 21, 2008. - After the voluntary phase closed, the staff member’s offer to leave became irrevocable. - Grounds for refusing volunteers: - The Fund reserved the right to refuse volunteers because of “(i) budgetary constraints; or (ii) the business needs of the Fund.” - Factors to be taken into account if exercising the right of refusal included: - (a) whether volunteers are within a fungible category of staff that is subject to reductions in force; and - (b) if so, whether there may be more volunteers in that category than is needed to achieve the reductions called for by the refocusing strategy. - Where assessment of relative competency of individual staff was necessary, the Institutional Panel (composition and terms in Annex I) would meet with relevant Department Directors to make recommendations to Management. ### Relation between voluntary and mandatory phases - The design features of the mandatory phase were expressly applied to the Fund’s right of refusal during the voluntary phase to provide transparency and predictability for staff decision-making. - Mandatory separations would be implemented under amended GAO No. 16: - Revised Section 4 reflected modifications to the Separation Benefits Fund policy. - Revised Section 12 (Reduction in Strength, Abolition of Position or Change in Job Requirements) made explicit that the touchstone was “relative competency” for determining which staff to separate when functions continued. - Equity consideration across the Fund: - Assessments of relative competency for large fungible groups would be conducted on an institution-wide basis to avoid inequities from department-by-department selections. ### Institutional Panel (IP) role and terms of reference - Purpose: “to ensure that the decisions on separations among fungible staff are made in a reasonable, consistent and non-discriminatory fashion and involve assessments of competency that are made on an institution-wide basis.” - If the right of refusal required assessment of relative competency, the IP would “make recommendations to the Managing Director regarding the staff with respect to whom the Fund should exercise such right of refusal.” ### Results of the voluntary phase and Management’s announcement - Voluntary phase requests: 591 staff members requested separation. - Targeted staff reduction originally envisaged: 380 positions. - Managing Director’s conclusions (April 29, 2008): - The restructuring goal to support the refocusing strategy “has also been achieved.” - The Fund was characterized as “top-heavy at the B levels and, at the same time, had too many support staff relative to other institutions.” - “Greater than proportionate reductions in B level and A1-A8 level staff were required.” - Mandatory separation was not required to achieve targeted rebalancing. - Budgetary accommodation: - Because volunteers sought shorter average stay and average Separation Benefits Fund payments were lower than budgeted, it was possible to accommodate about 30 percent of volunteers in excess of the target number of 380 while staying within the three-year restructuring budget approved by the Board. - Grade-group differentiation in exercising the right of refusal: - A1-A8: all requests would be accepted. - B-level: all requests would be accepted. - A9-A15: the Fund needed to retain about 100 to 125 staff out of the total of 275 volunteers in this grade range; thus, some A9-A15 volunteers would be refused. - Management emphasized decisions would be “taken on the basis of the business needs of the Fund” and that the Institutional Panel’s input would be sought. ### Q&A explanation of fairness and the 30 percent threshold - The Fund’s approach: - The three categories for budget construction and downsizing design: A1-A8, A9-A15, and B-level. - The number of voluntary separations permitted in excess of targeted reductions would correspond to a uniform percentage of the total reductions required under each grade group. - In light of the existing budgetary shortfall, this uniform percentage was 30 percent. - Application by group: - B1-B5: excess was 25 percent of required reductions → all volunteers accepted. - A1-A8: excess was 27 percent of required reductions → all volunteers accepted. - A9-A15: volunteers represented 110 percent of reductions envisaged in that category; budget accommodates only up to 30 percent more than required reductions at the A9-A15 level → A9-A15 volunteers above the 30 percent threshold would need to be refused. - Institutional rationale: accommodating excess volunteers in some groups (e.g., B1-B5) was consistent with institutional needs such as facilitating promotions and alleviating bottlenecks. ### Framework for exercise of the right of refusal — Supplement 2 (May 6, 2008) - Confirmation in Supplement 2: “Since the budget can only accommodate additional volunteers up to 30 percent more than the required reductions at the A9-A15 level, the A9-A15 volunteers above this threshold will need to be refused.” - Determination that cost of accepting all applications would exceed the $185 million multi-year restructuring budget approved by the Executive Board. - Primary criterion for identifying volunteers for refusal: “relative competency, with the objective of enabling the Fund to retain the most qualified staff with[in] each of the fungible groups.” - Procedures varied by fungible-group type: (a) large fungible group, (b) small fungible group, (c) fungible group within a single department. ### Large fungible group (A11–A15 macroeconomists) MARs-based procedure - MAR definition: “The MAR (Merit-to-Allocation Ratio) is the ratio of a staff member’s actual merit increase to the amount budgeted for this purpose.” - Key procedural rules for the Macroeconomist Group (A11–A15): - All A11–A15 macroeconomists already ranked within their department according to their 3-year MAR averages, yielding each volunteer a MARs percentile; staff were advised of their MARs percentiles at the start of the voluntary phase. - A uniform MARs cut-off percentile would be established across all relevant departments (the “MARs cut-off”) set so that the number of volunteers with MARs averages above the cut-off percentile equaled the number of A11–A15 macroeconomists for whom the right of refusal would need to be exercised (the “MARs cut-off group”). - Division of A11–A15 macroeconomist volunteers into three groups based on MARs percentiles: - Institutional Panel Assessment Group: - Volunteers whose MARs averages place them in the bottom 10-20 percent of the MARs cut-off group, and a group of staff equal in number to 10-20 percent of the MARs cut-off group whose MARs averages are the highest among those below the MARs cut-off (the “Assessment Band”); precise ranges take into account distribution and “bunching” among MARs. - All volunteers within the Macroeconomist Group who do not have a MARs average. - Any volunteers above the Assessment Band whom the relevant Department Director or the Institutional Panel (in consultation with the Director and taking into account views expressed by staff) represents should be included in the Institutional Panel Assessment Group on grounds that MARs percentile does not reflect relative competence; such representations must be exceptional and supported by a detailed written explanation. - Automatic acceptance group: - “All volunteers whose MARs fall below the Assessment Band shall be notified that their application for separation under the voluntary separation framework has been accepted.” - Automatic refusal group: - “All volunteers whose MARs fall above the Assessment Band and who have not been placed in the Institutional Panel Assessment Group under 13(c) above shall be notified that the Fund will exercise the right of refusal with respect to them.” *Source: IMF administrative tribunal decision excerpt and Staff Bulletin No. 08/03 with Supplement 2 as summarized in the tribunal’s factual background and regulatory framework sections.* ### 35. As to the assessment of volunteers within the Institutional Panel Assessment Group, ### 35. As to the assessment of volunteers within the Institutional Panel Assessment Group, ### Assessment process and Institutional Panel mandate - Supplement 2 instructed: - The Institutional Panel, together with the relevant Department Directors, will assess all of the volunteers within the Institutional Panel Assessment Group for purposes of identifying those volunteers who, when taken together with the volunteers who will be refused under paragraph 15, constitute a group containing the most competent volunteers within the Macroeconomist Group the size of which equals the number of volunteers for whom the right of refusal must be exercised. - The Institutional Panel will recommend to management that: (a) the right of refusal be exercised with respect to those volunteers so identified, and (b) the Fund accept the applications for separation under the voluntary framework with respect to all other volunteers in the Institutional Panel Assessment Group. - When making assessments, Department Directors were to apply additional criteria in a standardized form and provide these assessments to the Institutional Panel in advance. ### Additional criteria applied to assessments - The “additional criteria” included: - (i) Whether there are any reasons why a staff member’s MAR may not be indicative of relative performance. - (ii) The number of outstanding ratings from 1998–2007. - (iii) Trends in performance; for this purpose, an assessment of whether the staff member’s performance since May 1, 2007 was consistent with, higher than or lower than the last APR, will be given consideration. - (iv) The extent to which the staff member has the skills, experience required for the future that would be costly or difficult to replace. - (v) The length of time in grade, as a possible indication of the degree to which a staff member may have plateaued. - (vi) The staff member’s potential, defined as capacity for growth, either upwards or laterally, to contribute effectively to the organization in the longer term. This may include competencies such as learning agility, ability to resolve and reconcile differences, ability to operate on both strategic and tactical levels, degree of respect of peers, demonstrated behaviors of inclusion and respecting diverse views, etc. ### Opportunity for volunteers to present views - Supplement 2 advised volunteers of the opportunity to present written views to the Institutional Panel: - Volunteers have the opportunity to present their views in writing to the Institutional Panel as to why their 3-year MARs average is not reflective of their relative competency, including taking into account the feedback they had previously received from their supervisors. - Such views must be received by 5:00 p.m., Monday May 12, 2008 in order to be taken into account by the Panel. Such views may be emailed to INSTITUTIONAL PANEL. ### Results of the Institutional Panel and subsequent communications - The Institutional Panel met over the period of May 9-16, 2008 and on May 16, 2008 issued its “Report and Recommendations of the Institutional Panel on the Exercise of the Right of Refusal,” which formed the basis for Management’s accept/refuse decisions. - The Report reiterated the Staff Bulletin process for macroeconomists: - An Institutional Panel Assessment Group was established based on the Staff Bulletin procedures. - The Assessment Group included economists within the Assessment Band and any volunteer whose MARs percentile placed them above the Assessment Band but whom the Department or the Panel nevertheless felt should be considered for voluntary separation based on relative competence. - Volunteers whose MARs percentiles were below the Assessment Band were automatically accepted for separation. - Volunteers whose MARs percentiles were above the Assessment Band and who were not placed in the Assessment Group were automatically refused for separation. - The Managing Director communicated to staff (Message on the Completion of the Voluntary Phase, May 19, 2008) that “It still means that 99 volunteers cannot be accepted,” and offered leave without pay as an alternative option to those who chose to leave. ### Applicant (Mr. Billmeier) — chronology and facts - Employment and request: - Mr. Billmeier began employment with the Fund on October 1, 2002. - On April 17, 2008, while serving as a Grade A13 Economist in an area department, Applicant requested voluntary separation pursuant to the downsizing exercise, indicating May 13, 2009 as his preferred last day of active service and received automated confirmation. - Applicant had been informed on March 3, 2008 that his 3-year average MAR was 1.33, which placed him in the 98.5th percentile of the distribution of A11-A15 economists in his department. - Submission to the Institutional Panel: - Applicant submitted a written statement to the Institutional Panel expressing disagreement with the process and reserving rights for future challenge. The Panel acknowledged receipt (email confirmation on May 18, 2008). - Decision and aftermath: - On May 21, 2008, Applicant was notified by email that “. . . after careful consideration, your application has been declined. . . .” - Applicant continued serving until September 19, 2008, when he resigned to take other employment; because his request was denied, he did not receive the enhanced separation benefits under the program. ### Administrative review attempts and Grievance Committee proceedings - Applicant sought information and recourse: - May 23, 2008: Applicant emailed HRD Area Team requesting criteria used and modes of recourse. - June 12, 2008: HRD Director’s representative explained that Applicant’s MARs percentile placed him above the MARs cut-off for his fungible group, resulting in automatic refusal; Applicant’s case would only have been discussed if his department or he had requested discussion—there had been no such submission prior to the deadline. - HRD later acknowledged Applicant’s written submission was received slightly after the deadline but was accepted and discussed; the Panel concluded the submission did not justify moving him into the Assessment Group. - HRD advised Applicant that to pursue a formal challenge he could bring a Grievance to the Grievance Committee within six months of the notification. - Grievance and outcome: - December 18, 2008: Applicant filed a Grievance with the Grievance Committee contesting the denial. - The Fund moved to dismiss for lack of subject matter jurisdiction, asserting Applicant challenged systemic rules rather than the application of rules to his individual case. - May 28, 2009: The Grievance Committee granted the Fund’s Motion, finding Applicant was seeking to challenge the rules promulgated to implement the restructuring program rather than the manner in which regulations were applied to him personally; the Committee concluded it lacked jurisdiction because its jurisdiction is limited to claims that an individual decision is not consistent with governing regulations. - Applicable regulation cited: GAO No. 31, Rev. 4 (October 1, 2008), Section 4.01 and Section 4.03. ### Applicant’s principal contentions summarized - Applicant contends: 1. The Fund’s denial of his voluntary separation request was erroneous, discriminatory, and illegal. 2. Decision-making in his case and the downsizing generally was inconsistent with the stated intent to base refusal upon either budgetary constraints or business needs. 3. Applying additional criteria only to Grades A9-A15 while categorically accepting A1-A8 and B-level volunteers was inconsistent with Fund rules and international administrative law; neither budgetary constraints, business needs, nor relative competency justified the differential treatment. 4. The Institutional Panel erred by relying on incorrect or insufficient data and failing to properly apply additional criteria; an individual analysis of relative competency was required. 5. Applicant relied on assurances that refusal would occur only because of budgetary constraints or business needs. 6. The Fund’s budgetary approach to the downsizing was illegal. 7. The Grievance Committee erred in dismissing Applicant’s Grievance for lack of jurisdiction. 8. The Tribunal has jurisdiction ratione temporis; the Application was timely filed after exhaustion of available channels of administrative review. 9. Relief sought includes: - a. Quashing of the Grievance Committee’s dismissal for lack of jurisdiction; - b. That Applicant’s claims be heard; - c. Rescission of the decision denying his separation request; - d. Monetary relief equal to what Applicant would have received had he separated effective September 19, 2008, under the downsizing terms, plus tax allowances as applicable; - e. Moral and punitive damages in the amounts of six months salary each; - f. Legal costs for representation in the Administrative Tribunal and in the exhaustion of administrative review channels. ### Respondent’s principal contentions summarized - The Fund contends: 1. The Tribunal lacks jurisdiction ratione temporis because no applicable administrative review channels existed for Applicant’s claims, requiring an Application within three months of the refusal decision. 2. The Fund properly exercised the right of refusal consistent with the 2008 framework and applicable legal principles. 3. The Fund did not abuse its discretion in formulating the refusal framework; the restructuring budget’s paramount objective was to accomplish refocusing of the Fund rather than to accept the maximum number of volunteers. 4. Applying the right of refusal only to Grade A9-A15 staff was a reasonable exercise of discretionary authority related to downsizing goals. 5. Applicant’s refusal was a direct consequence of the framework: his MARs ranking placed him among Grade A11-A15 macroeconomists whose requests were automatically declined. 6. Neither Applicant’s department nor the Institutional Panel determined Applicant should be placed in the Assessment Group; Applicant’s submission did not provide a basis to move him into the Assessment Group. 7. All staff were on notice that their request for voluntary separation could be refused. 8. The budgetary treatment was proper: the restructuring budget aimed to support the restructuring strategy rather than maximize separations. ### Issues the Administrative Tribunal must consider - The Tribunal identified principal issues for adjudication: 1. Was the Application timely filed following exhaustion of available administrative review channels? 2. Did the Fund abuse its discretion in refusing Applicant’s voluntary separation request under the 2008 downsizing? Did the decision violate internal law or general principles of international administrative law? 3. Did the Fund impermissibly discriminate by allowing A1-A8 and B-level volunteers to separate while subjecting A9-A15 staff to the right of refusal? 4. In exercising refusal, did the Fund act arbitrarily or violate fair procedures in differentiating among Grade A11-A15 fungible macroeconomist volunteers? 5. Did the Fund err in assessing Applicant’s relative competency vis-à-vis other volunteers in his large fungible group? 6. Did the Fund mislead Applicant about the likelihood that his request would be granted? 7. Did the Fund’s budgeting for the downsizing improperly limit the number of staff able to separate under its terms, substantially affecting Applicant’s outcome? *Source: Supplement 2; Report and Recommendations of the Institutional Panel on the Exercise of the Right of Refusal; Message from the Managing Director on the Completion of the Voluntary Phase (May 19, 2008); Applicant’s submissions and Grievance Committee decision as summarized in the record.* ### 54. The Tribunal observes that Mr. Billmeier maintains that his case is “significantly ### j2010-3 - 54. The Tribunal observes that Mr. Billmeier maintains that his case is “significantly ### Tribunal's initial observation on comparability of cases - The Tribunal observes that Mr. Billmeier maintains his case is “significantly different” from that of Mr. Faulkner-MacDonagh on the ground that he “does not challenge his MAR as being erroneous or how his MAR was arrived at, and his department did not make representations as to the expected approval of his request for voluntary separation.” - The Tribunal finds the cases are not significantly different. - Although Mr. Billmeier submitted a communication to the Institutional Panel, that communication was in the nature of a protest and did not provide a basis, consistent with the applicable regulations, for the Panel to place him in the Institutional Panel Assessment Group or to recommend that his request for separation under the downsizing be granted. ### Admissibility — timeliness and channels of administrative review - Threshold issue: whether the Tribunal lacks jurisdiction ratione temporis because no channels of administrative review were applicable and therefore an Application should have been filed within three months of the decision refusing separation under the downsizing exercise. (Respondent’s contention) - Article VI of the Tribunal’s Statute provides, in pertinent part: - Section 1: “An application challenging the legality of an individual decision shall not be admissible if filed with the Tribunal more than three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision.” - Section 2: “An application challenging the legality of a regulatory decision shall not be admissible if filed with the Tribunal more than three months after the announcement or effective date of the decision, whichever is later; provided that the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging the legality of an individual decision taken pursuant to such regulatory decision.” - Section 3: “In exceptional circumstances, the Tribunal may decide at any time, if it considers the delay justified, to waive the time limits pre‑scribed under Sections 1 or 2 of this Article in order to receive an application that would otherwise be inadmissible.” - Article VI must be read with Article V: “[w]hen 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.” (Article V, Section 1.) - The Statute expressly confers subject matter jurisdiction over challenges to both “individual” and “regulatory” decisions; therefore questions arise when a challenge to an individual decision is closely related to a challenge to a regulatory decision. ### Jurisprudence and precedents on interaction of individual and regulatory challenges - The Grievance Committee’s jurisdiction does not extend to challenges to regulatory decisions; its jurisdiction is limited to complaints alleging adverse effect by a decision inconsistent with Fund regulations and specifically excludes “challenge[s] to . . . staff regulations as approved by the Managing Director.” (GAO No. 31, Rev. 4, Section 4; cited IMFAT judgments: 2009-1, 2002-1) - Article VI, Section 2 governs mixed challenges; the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging an individual decision taken pursuant to that regulatory decision. - Case law cited: - Mr. “R”: the Tribunal held the individual decision and regulatory decision were “essentially indistinguishable analytically” where refusal to grant an exception was tantamount to upholding the policy; an individual decision was nonetheless taken when management declined the exception, and timeliness for challenging the regulatory aspects was tied to exhaustion of administrative review of the individual decision. - Ms. “G”: applicant filed with the Tribunal within three months of the individual decision and also filed a Grievance to preserve review rights; Grievance Committee dismissed for lack of jurisdiction. - Baker et al. (IMFAT Judgment No. 2005-3) and Daseking-Frank et al. (IMFAT Judgment No. 2007-1): applicants challenged regulatory decisions directly within three months of announcement/effective date; no channels of review existed for regulatory decisions in those instances. - Tribunal jurisprudence favors recourse to the Grievance Committee where that avenue is available (Ms. “Y”, IMFAT Judgment No. 1998-1). ### Effect of Fund communications and Applicant’s conduct on admissibility - The Tribunal has considered Fund communications to potential applicants when assessing whether further review was required (cited cases: IMFAT Judgment Nos. 2006-1, 2006-6, 2001-1). - Applicant cites a communication from the representative of the Fund’s Director of Human Resources stating, in part: - “. . . you have access to the same dispute resolution mechanism as for all formal grievances, as set forth in GAO No. 31. . . . If you do want to pursue a formal challenge to the decision not to accept your application for voluntary separation, . . . . your challenge should go directly to the Grievance Committee, within six months of the date you were informed of the decision.” - The Fund’s communications may have led Applicant to pursue the Grievance Committee channel, which Respondent later contends was debarred. - The communications suggest Respondent itself regarded the Grievance Committee as the appropriate venue for complaints about refusal of requests for voluntary separation under the downsizing. - The Tribunal considers whether Applicant’s conduct evidenced a “casual disregard of legal requirements”; timely filing with the Grievance Committee may evidence a good faith effort at seeking review (cited cases: IMFAT Judgment Nos. 2006-5, 2006-6, 2001-1). - The Tribunal regards Fund recourse procedures as “complementary and effective” and designed to afford remedies where merited, not to debar them (Estate of Mr. “D”, para. 102; Mr. “O”, para. 48). ### Tribunal’s admissibility conclusion in Mr. Billmeier’s case - The Tribunal finds the instant case is one in which Applicant is challenging the application of a regulatory decision to his particular circumstances and that it was reasonably raised before the Grievance Committee. - The Application to the Tribunal was submitted within three months of the Grievance Committee’s decision dismissing the Grievance for lack of subject matter jurisdiction. - The Application is therefore admissible. ### Grievance Committee’s dismissal for lack of subject matter jurisdiction — Tribunal’s stance - Applicant separately challenges that the Grievance Committee improperly concluded it lacked jurisdiction and seeks quashing of that decision. - The Tribunal holds that it does not serve as an appellate body vis-à-vis the Grievance Committee; the Committee’s decisions are not “administrative acts” within Article II of the Statute (citing IMFAT Judgment No. 1996-1 and other precedents). - The Tribunal declines to rule on whether the Grievance Committee erred in dismissing Mr. Billmeier’s Grievance for lack of subject matter jurisdiction. - The Tribunal will proceed to consider the merits. ### Merits — central questions and context - Central question: Did the Fund abuse its discretion in refusing Applicant’s request for voluntary separation pursuant to the 2008 downsizing exercise? Did the decision violate the Fund’s internal law or any general principle of international administrative law? - Context and stakes: - The dispute concerns whether, when choosing to leave the Fund in 2008, Applicant was improperly denied enhanced separation benefits under a program designed to encourage voluntary separation to trim and re‑shape the Fund’s workforce, reduce expenditures, and refocus the mission of the organization. - Applicant has not been required to leave the Fund, nor denied the opportunity to do so; the dispute concerns the value of the separation package he would have received if accepted under the terms of the downsizing program. - Approximately 492 staff members separated under the favorable terms of the downsizing program; Mr. Billmeier and 98 other volunteers were denied the benefit when the Fund exercised its reserved right of refusal in the event of over‑subscription. - Applicant does not dispute that the contested decision to refuse his request was discretionary on the part of Fund Management. - Standard of review for discretionary decisions (as consistently applied by this and other international administrative tribunals): whether the individual decision was “arbitrary, capricious, discriminatory, improperly motivated, based on an error of law or fact, or carried out in violation of fair and reasonable procedures.” (Commentary on the Statute, p. 19; further cited jurisprudence) - The Tribunal notes deference is at its height in reviewing regulatory or policy decisions taken by the Executive Board (cited Daseking-Frank et al., IMFAT Judgment No. 2007-1, paras. 46-47). *The Tribunal (Administrative Tribunal for the International Monetary Fund) in IMFAT matter j2010-3, paras. 54–76.* ### 78. Applicant alleges that the Fund failed to follow the rules it initially set out in undertaking ### Applicant alleges that the Fund failed to follow the rules it initially set out in undertaking the downsizing ### Allegations by Applicant - Applicant alleges the Fund: - failed to follow the rules it initially set out in undertaking the downsizing; - exercised the right of refusal only as to Grade A9-A15 volunteers, unfairly disadvantaging a particular category of staff members; - improperly assessed Applicant’s “relative competency” in relation to other volunteers in the category of Grade A11-A15 fungible macroeconomists. - Applicant cites Staff Bulletin No. 08/03, p. 2: “. . . it may be necessary to refuse volunteers because of either budgetary constraints or the business needs of the institution. However, to the maximum extent possible, the Fund will accept all volunteers.” ### Respondent’s position and procedural design - Respondent contends: - adoption of Staff Bulletin No. 08/03 did not legally obligate the Fund to accept the “maximum number of volunteers”; - the Fund properly accounted for institutional needs in designing the downsizing program; - refusal of Applicant’s request reflected the necessary outcome of the proper application of sound regulations; - there was a rational basis for applying the right of refusal only to Grade A9-A15 staff members; - the method for differentiating among Grade A11-A15 macroeconomists was fairly drawn and properly applied in Applicant’s case. - The Fund linked the exercise of the right of refusal to management’s “objective . . . to achieve staff reductions in a manner that will support the ongoing strategy to refocus and modernize the Fund.” (Staff Bulletin No. 08/03, p. 1.) - The Fund placed staff on notice that disposition of applications would be influenced by the category of staff and the number of volunteers in that category. (Staff Bulletin No. 08/03, p. 3.) ### Legal standard: “rational nexus” test and scope of judicial review - IMFAT standard for assessing classification schemes against equal treatment requires a “rational nexus” between the classification and the objective: - “Respondent’s proffered reasons for the distinction in benefits . . . must be supported by evidence.” - Tribunal asks whether the decision “. . . could . . . have been taken on the basis of facts accurately gathered and properly weighed.” - Tribunal must find a “. . . rational nexus between the classification of persons subject to the differential treatment and the objective of the classification.” (Mr. “R”, para. 47.) - The Tribunal recognizes institutional policy-making discretion and will respect managerial choices among reasonable alternatives where they are rationally related to the mission and objectives of the Fund. - The “rational nexus” does not require a perfect fit and may rest upon generalizations. (Ms. “G”, para. 79.) ### Treatment of grade groups and Tribunal’s assessment of discrimination claim - Central regulatory design: accept all volunteers in Grades A1-A8 and B1-B5; exercise right of refusal as to Grades A9-A15. - Respondent rationale: - target staffing cuts differentially among grade groups (A1-A8, A9-A15, and B1-B5) to align structure with “industry standard”; - B-levels were “top-heavy” and there were too many support staff relative to other institutions; - Grade A9-A15 staff, especially fungible macroeconomists, form the core workforce and should be retained at a greater rate. - Applicant’s counterpoints: - challenges plausibility of categorical acceptance of A1-A8 and B-level volunteers while rejecting some A9-A15 volunteers; - argues some rejected A9-A15 staff were less valuable than accepted B-level staff. - Tribunal findings: - existence of a rational nexus between the policy goals and differential allocation suffices even if some individual anomalies exist; - the Fund advanced tenable reasons to retain relatively more A9-A15 staff and thereby established a rational nexus between the objective and differential allocation. ### MARs-based differentiation among Grade A11-A15 macroeconomists - For Grade A11-A15 macroeconomists (largest fungible group), Fund procedure: - ranked all macroeconomist volunteers within departments according to their 3-year MAR averages, thereby giving each volunteer a MARs percentile; - established a uniform MARs cut-off percentile across relevant departments such that the number of volunteers with MARs averages above the cut-off percentile equaled the number of A11-A15 macroeconomists for whom the right of refusal needed to be exercised (the “MARs cut-off group”). (Staff Bulletin No. 08/03, Supplement 2, paragraph 12.) - The Institutional Panel’s mandate: ensure decisions on separations among fungible staff are “made in a reasonable, consistent and non-discriminatory fashion and involve assessments of competency that are made on an institution-wide basis.” (Staff Bulletin No. 08/03, Annex I, p. 1.) ### Assessment Band and opportunity to challenge MARs percentile - Mechanism to avoid arbitrariness at margins: - Institutional Panel Assessment Group composition (paragraph 13): - (a) volunteers whose MARs averages place them in the bottom 10-20 percent of the MARs cut-off group, and a group of staff equal in number to 10-20 percent of the MARs cut-off group whose MARs averages are the highest among those below the MARs cut off (the “Assessment Band”); - “The precise ranges will take into account the distribution among the MARs (including the ‘bunching’ among MARs).” - (b) all volunteers within the Macroeconomist Group who do not have a MARs average; - (c) any volunteers above the Assessment Band whom the relevant Department Director or the Institutional Panel represents should be included on the grounds that their MARs percentile does not reflect their relative competence—such representations by Department Directors must be exceptional and supported by a detailed written explanation. - Tribunal conclusion: the procedure allowing volunteers to bring circumstances to the Panel adequately met the need for adjustment where MARs percentiles did not reflect relative competency. ### Questions reserved for adjudication concerning Applicant’s individual case - Issues identified for Applicant’s challenge: - whether the Institutional Panel acted consistently with its mandate in Applicant’s case; - whether the Fund’s regulations or general principles of international administrative law required an individualized assessment beyond the MARs cut-off of Applicant’s “relative competency” vis-à-vis other volunteers in his fungible group; - whether the use of the 3-year MARs average and percentile provided a reasonable basis for assessing relative competency for purposes of exercising the right of refusal. *IMF Administrative Tribunal judgment excerpt (paragraphs 78–93).* ### 94. In Applicant’s view, ### j2010-3 - 94. In Applicant’s view, ### Applicant’s central claim about denial of voluntary separation - Applicant contends that under the standard in Staff Bulletin 08/03 the Fund could only deny an application for voluntary separation “because of either budgetary constraints or the business needs of the institution.” - Applicant asserts that to meet the “business needs” requirement the Fund was required to conduct an individual analysis of his submission to the Institutional Panel. - Applicant’s complaint: his individual application was erroneously denied based on the facts and his submission to the Institutional Panel and the denial was outside the amount of discretion the Fund is allowed for discretionary decisions. ### Institutional Panel role, governing regulations, and selection criteria - Staff Bulletin No. 08/03 and Supplement 2 distinguish: - Paragraph 16 and the Panel’s responsibilities to assess those volunteers placed in the “Institutional Panel Assessment Group.” - Paragraph 13(c) governs which volunteers are to be placed in the Institutional Panel Assessment Group. - Paragraph 13(c) (as quoted) provides: - “(c) any volunteers above the Assessment Band whom the relevant Department Director or the Institutional Panel (in consultation with the Director and taking into account the views expressed by staff under paragraph 22 below) represents should be included in the Institutional Panel Assessment Group on the grounds that their MARs percentile does not reflect their relative competence. Such representations by Department Directors should be made on an exceptional basis and must be supported by a detailed written explanation.” - Tribunal finding: - Applicant does not contend, and there is no evidence, that there was any cause for the Panel to have placed him in the Assessment Group. - Applicant did not bring to the Panel’s attention any cause consistent with the applicable regulations that would have required placing him in the Assessment Group. ### Interpretation of individualized assessment vs. automatic cut-off - Staff Bulletin No. 08/03 (p. 3) states: - “To the extent that exercising the right of refusal requires an assessment of the relative competency of individual staff (so as to enable the Fund to retain the most qualified staff), the Institutional Panel, whose composition and terms of reference are described in Annex I, will meet with relevant Department Directors to make recommendations to Management as to which volunteers should be refused.” - Tribunal reasoning: - Although the provision could suggest individualized assessment for volunteers, the significant over-subscription of Grade A11-A15 macroeconomists relative to their targeted reduction provided a reasonable basis for the Fund to create a method that relied, in part, upon automatic cut-offs. - The Fund has discretion to amend non-fundamental conditions of employment; the addition of requirements in Supplement 2 did not contravene the initial Staff Bulletin No. 08/03 mandate that decisions be made in accordance with business needs and budgetary constraints. ### Inter-departmental MARs handling and equity considerations - Respondent’s explanation: - The assessment of relative competency was initially made at the departmental level. - For job groups in multiple departments, features were introduced to account for inter-departmental discrepancies in use of MARs and the relative strength of staff in different departments. - These features aimed to balance administrative efficiency with internal equity within and across departments. - Consequently, “MARs averages . . . that fell above or below the uniform percentile cut-off in different departments were not identical.” ### Documentary evidence re automatic refusals and Applicant’s placement - Redacted Annex III of the Report of the Institutional Panel titled “Volunteers Not Individually Assessed by the Institutional Panel (Automatically Accepted/Refused)” shows: - For “Macroeconomists (A11-A15)” an introductory note: “In cases where staff made submissions to the Panel, the submissions were reviewed by the Panel. In one instance, a staff member was moved to the assessment band, in consultation with the department.” - Counts stated: - 26 automatic acceptances among Grade A11-A15 macroeconomist volunteers. - 50 automatic refusals among Grade A11-A15 macroeconomist volunteers. - Total number of A11-A15 economist volunteers not individually assessed by the Institutional Panel: 76. - Annex III indicates that in all job categories the total number of automatic acceptances was 72 and the total number of automatic refusals was 50, resulting in 122 volunteers not individually assessed by the Institutional Panel. - Applicant’s name is listed in the automatic refusal section; documentary evidence confirms Mr. Billmeier’s request was automatically refused because his MARs percentile fell within the “automatic refusal group.” ### Applicant’s submission to the Institutional Panel and MARs accuracy - Staff Bulletin No. 08/03, Supplement 2, Paragraph 22 invited volunteers to present views in writing “as to why their 3-year MARs average is not reflective of their relative competency.” - Applicant submitted a communication reproduced in para. 41 (noting content summarized here): - Applicant refused to “send a perverse note explaining that I am a worse performer than it says in my APRs.” - Tribunal finding: Applicant’s submission “did not address whatsoever the factors to be taken into account by the IP in assessing relative competency” and thus provided no cause for an individualized inquiry. - Applicant did not challenge his MAR as being erroneous or how his MAR was arrived at; Supplement 1 (March 21, 2008) advised staff to contact HRD no later than March 31, 2008 if concerned about MARs calculations. ### Allegation of misleading statements and estoppel - Applicant alleges he was misled by statements of the Managing Director and Staff Bulletin No. 08/03 that the right of refusal would be used “sparingly,” and that he felt “strongly encouraged to volunteer.” - Applicant states he relied on such assurances in negotiating with prospective employers. - Tribunal conclusion: - While encouragement to volunteer existed to avoid mandatory separations, staff were on notice the Fund reserved the right to refuse separation. - There is no persuasive ground for a finding of estoppel in favor of Applicant. ### Budgetary decisions and alleged improper limitation on acceptances - Applicant contends that Fund budgetary decisions improperly limited the total number of staff who could separate under the program and thereby affected his outcome. - Tribunal view: - The Fund, in managerial discretion, was entitled to decide which charges to allocate to the restructuring budget. - The preeminent objective of the restructuring budget was to accomplish the restructuring strategy, not to accept the maximum number of volunteers as an end in itself. - Even if restructuring budget resources remain at the conclusion of the exercise (which will not be until the end of FY 2011), that fact does not give a refused volunteer a legal right to require the full amount be spent on additional acceptances. ### Tribunal decision - The Administrative Tribunal of the International Monetary Fund unanimously decides: - The Application of Mr. Billmeier is denied. - Decision signed and dated: - Stephen M. Schwebel, President - Nisuke Ando, Judge - Michel Gentot, Judge - Celia Goldman, Registrar - Washington, D.C., February 9, 2010 --- _Source: https://www.imf.org/-/media/files/imfat/j2010-3.pdf_