## Administrative Tribunal of the International Monetary Fund — Introduction (j2012-3)

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### Hearing and procedural posture
- The Administrative Tribunal of the International Monetary Fund met on September 10 and 11, 2012, composed for this case of Judge Catherine M. O‘Regan, President, and Judges Edith Brown Weiss and Francisco Orrego Vicuña, to adjudge the Motion for Summary Dismissal of the Application brought by Mr. Brian Tosko Bello.
- Applicant was represented by Ms. Veronika Nippe-Johnson, Schott Johnson, LLP. Respondent was represented by Ms. Jennifer Lester, Assistant General Counsel, and Ms. Melissa Su Thomas, Counsel, IMF Legal Department.
- 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 case is limited to the question of admissibility of the Application. (Rule XII, paras. 1–8; Article X, Section 2(d) of the Statute.)
- The Tribunal did not hold oral proceedings on the Motion for Summary Dismissal because neither party requested them and they were not deemed useful. (Article XII of the Tribunal‘s Statute; Rule XIII, para. 1.)

### Procedural timeline
- April 12, 2012: Mr. Tosko Bello filed an Application with the Administrative Tribunal.
- April 13, 2012: The Application was transmitted to Respondent.
- April 18, 2012: Registrar circulated within the Fund a notice summarizing the issues raised in the Application pursuant to Rule IV, para. (f).
- May 14, 2012: Respondent filed a Motion for Summary Dismissal (pursuant to Rule XII) and transmitted the Motion to Applicant the following day.
- June 15, 2012: Applicant filed an Objection to the Motion for Summary Dismissal.
- April 5, 2012: Applicant filed a Grievance with the Fund‘s Grievance Committee to preserve rights in either forum.
- June 1, 2012: Respondent filed in the Grievance Committee a Motion to Dismiss the Grievance for lack of subject matter jurisdiction.

### Factual background
- Applicant began employment with the Fund on March 1, 2001.
- The Fund announced a downsizing initiative in early 2008 to trim and reshape its workforce; staff were given a window from March 1-April 21, 2008 in which to volunteer.
- Some 492 volunteers separated under the beneficial terms of the downsizing exercise.
- The Fund established an intranet website titled “Exploring Your Options” as a source of practical information for potential volunteers. Staff Bulletin No. 08/03 (Refocusing and Modernizing the Fund: The Framework for the Downsizing Exercise) (February 29, 2008), p. 2, referred staff to that website.
- The intranet Q&A stated, in part:
  - Q. If I volunteer and take a package, is there a specific rule that will prevent me from being hired by the Fund sometime in the future?
  - A. No. The Fund has no prohibition from being reemployed in the future because you have taken a separation package. You may not be reemployed at the Fund during the separation leave or the period that it would cover if you take the separation leave as a lump sum. There also are some restrictions on reemployment while you are also receiving a pension.
- On April 21, 2008, Applicant requested voluntary separation under the downsizing program; on May 2, 2008, his request was accepted.
- By letter of May 19, 2008, HRD confirmed administrative arrangements and stated, inter alia, that the memorandum represented a full and final resolution and release of any and all demands and claims by the Applicant arising out of or in connection with his Fund employment to date, other than the enforcement of the agreement.
- The May 19, 2008 letter confirmed Applicant would receive, as of the effective date of his separation, a separation benefit in the form of a lump-sum payment equivalent to 7.5 months of his net annual salary.
- Applicant‘s separation from the Fund became effective on May 13, 2009.

### Adoption and communication of the contested policy
- In the year in which most volunteers separated, the Fund re-considered the general rule relating to re-employment and, citing concerns about possible “reputational risk,” adopted a policy not to re-hire volunteers who separated under the downsizing.
- On April 2, 2009, HRD communicated the new policy to Senior Personnel Managers (SPMs) via a “Strictly Confidential” email stating, in part:
  - “Just to reconfirm policy on this issue, for yo[u]r information: Management has decided that we do not at this stage envisage the re-hiring of volunteers, either as regular staff (fixed-term or limited-term) or as contractuals. We mentioned this at our recent SPM meeting, but it may not have been fully clear as we are still getting some proposals. We‘ll be grateful for your cooperation in implementing this policy.”
- The Fund explains the intranet posting by noting that as a general matter staff members who receive SBF [Separation Benefits Fund] benefits become eligible for re-employment by the Fund after the end of the period of time corresponding to those benefits, and that the Q&A on “Exploring Your Options” explained that long-standing policy.

### Events leading to the Application
- According to Applicant, in January 2012 he was contacted by an official of his former department who extended a verbal offer for a contractual appointment.
- January 11, 2012: Applicant inquired by email to the HRD Director about his eligibility to apply for the position.
- January 12, 2012: HRD Director notified Applicant by email that “[b]ecause you left under the downsizing initiative, you are not eligible to compete for any contracts at the Fund.”

### Channels of administrative review and timeliness
- Article V, Section 1, of the Tribunal‘s Statute requires exhaustion of available channels of administrative review when the Fund has established such channels before filing with the Tribunal.
- Article VI sets time limits:
  - An application challenging an individual decision must be filed within three months after exhaustion of administrative review.
  - An application challenging a regulatory decision must be filed within three months of the announcement or effective date of the decision, whichever is later; the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging an individual decision taken pursuant to such regulatory decision.
- Applicant seeks to bring a direct challenge to the contested policy as a “regulatory decision” pursuant to Article VI, Section 2, but also invoked the Fund‘s Grievance Committee (filed April 5, 2012) to preserve rights and to exhaust administrative channels in the alternative.
- The Tribunal observed that Applicant seeks rescission of both the contested policy and the decision applying it in his individual case and that his complaint against the individual decision rests entirely on a challenge to the underlying policy, with no allegations specific to the application of the policy in his case.
- The Tribunal concluded that further proceedings in the Grievance Committee would not serve the purposes of administrative review and that Applicant has satisfied the exhaustion requirement of Article V, Section 1.

### Jurisdictional issue presented
- Respondent filed a Motion for Summary Dismissal on May 14, 2012, contending the Tribunal lacks jurisdiction ratione personæ over a former staff member who challenges denial of eligibility for re-employment.
- The Fund also filed in the Grievance Committee a Motion to Dismiss the Grievance on June 1, 2012, arguing lack of subject matter jurisdiction because Applicant‘s claim rests on the legality of the policy itself rather than on the correctness of its application in his individual case.
- The Tribunal noted that it need not decide at the summary dismissal stage whether the contested policy qualifies as a “regulatory decision” for the purpose of Article VI, because Applicant has identified an individual decision giving effect to the policy and Article VI, Section 2, allows the illegality of a regulatory decision to be asserted in support of an admissible application challenging an individual decision.

### Parties‘ principal arguments
- Applicant‘s contentions on the merits:
  - The later-adopted policy barring the re-employment of former staff members who separated voluntarily under the terms of the 2008 Fund-wide downsizing exercise directly contravenes written information provided by the Fund, which was reasonably relied upon by staff members including Applicant, in deciding to opt for separation under that program.
  - The contested policy discriminates impermissibly against staff members who separated voluntarily under the 2008 downsizing vis-à-vis other former Fund staff members in respect of eligibility for re-employment.
  - The Fund‘s policy against re-employment of staff members who separated voluntary under the 2008 downsizing is not supported by any proper business rationale.
  - The contested policy has been implemented in the absence of fair and proper procedures.
  - Relief sought by Applicant:
    - a. rescission of the HRD Director‘s January 12, 2012 decision that Applicant was not eligible for appointment to a contractual vacancy in the Fund;
    - b. rescission of the Fund‘s policy against re-hiring (either as regular staff or contractual) former staff members who separated voluntarily under the 2008 downsizing exercise;
    - c. compensation in the amount of one-year‘s salary as ―compensatory and moral damages‖; and
    - d. legal fees and costs incurred in pursuing his case before the Grievance Committee and the Administrative Tribunal, including those incurred in responding to the Motion for Summary Dismissal.
- Respondent‘s contentions on admissibility:
  - The Application is ―clearly inadmissible‖ (Rule XII, para. 1) for lack of jurisdiction ratione personæ.
  - The drafters of the Tribunal‘s Statute did not contemplate that the Tribunal would have jurisdiction to consider a challenge by a person not currently on the staff of the Fund to a decision not to select him for employment opportunities. Applicant is in the same position as any other external job seeker.
  - An application in the Tribunal by a former staff member must arise from the prior relationship between the staff member and the Fund. That condition is not met in this case.
  - There was no firm, individualized commitment of re-employment in this case that might, under some circumstances, give rise to a contractual obligation and thus a receivable claim.
- Applicant‘s contentions on admissibility:
  - Applicant challenges a ―regulatory decision‖ of the Fund that is within the Tribunal‘s subject matter jurisdiction.
  - Applicant, as a member of the group of former staff members who separated voluntarily under the 2008 Fund-wide downsizing exercise, is ―adversely affected‖ by the contested policy within the meaning of Article II of the Tribunal‘s Statute.
  - Applicant‘s challenge is timely, as he filed his Application within three months of being notified of the challenged policy.
  - Applicant‘s situation differs fundamentally from that of any other external unsuccessful job seeker.
  - Former staff members may resort to the Fund‘s dispute resolution bodies.

### Consideration of admissibility and jurisdiction ratione personæ
- Question presented:
  - Whether Applicant, as a former member of the staff of the Fund who separated voluntarily under the terms of the 2008 Fund-wide downsizing program, is within the Tribunal‘s jurisdiction ratione personæ to contest the policy later adopted by the Fund barring the re-employment of such former staff members and the application of that policy in his individual case.
- Tribunal‘s jurisdiction ratione personæ (statutory provisions cited):
  - Statute, Article II, Section 1.a.: "The Tribunal shall be competent to pass judgment upon any application . . . by a member of the staff challenging the legality of an administrative act adversely affecting him."
  - Statute, Article II, Section 2.c.(i) defines "member of the staff" as "any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff."
  - The Tribunal has affirmed that its jurisdiction is conferred exclusively by its Statute and that it may not exercise powers beyond those granted by that Statute.
- Respondent reliance on Statutory Commentary:
  - Cited statement: "The statute would not allow unsuccessful candidates to the staff to bring claims before the tribunal." Commentary on the Statute, p. 15.
  - Respondent’s position: Applicant "stands in the same position as any would-be job applicant who is disappointed not to have been selected for a position" and falls within the class intended to be excluded from Tribunal jurisdiction ratione personæ.
- Tribunal analysis and precedents:
  - Tribunal finds Applicant‘s status is not the same as that of any other job seeker because the contested policy differentiates former staff who separated under the 2008 downsizing from other job seekers by deeming them ineligible for future Fund employment; that distinction arises directly from their prior relationship with the Fund.
  - Precedent: Mr. M. D’Aoust v. IMF, IMFAT Judgment No. 1996-1 (April 2, 1996) — Tribunal exercised jurisdiction where contested decision taken prior to employment thereafter affected the applicant as a member of the staff.
  - Distinction from Mr. “A” (IMFAT Judgment No. 1999-1) where applicant had "never become a member of the Fund‘s staff."
  - Tribunal acknowledges former staff may bring applications alleging "failure by the Fund to adhere to a legally-binding commitment."
  - Applicant‘s separation letter releases the Fund from claims arising out of his employment up to the agreement date but expressly excludes claims for "enforcement of this agreement."
  - Precedent: Mr. “V” v. IMF, IMFAT Judgment No. 1999-2 (August 13, 1999) — Tribunal exercised jurisdiction over breach of settlement and release agreement.
- Applicant alleges unilateral and retroactive amendment of the understanding under which he separated regarding eligibility for future Fund employment; Respondent contends there was "no firm, individualized commitment of re-employment" and thus no contractual obligation breached.

### Tribunal conclusions on admissibility and procedural outcome
- The Tribunal has jurisdiction to decide claims for failure by the Fund to adhere to a legally binding commitment; Applicant alleges such a breach — the question of breach goes to the merits, not admissibility.
- Two grounds for jurisdiction in this case:
  - The contested policy expressly distinguishes former staff who separated voluntarily under the beneficial terms of the downsizing from other job seekers.
  - Applicant asserts violation of a material term of his separation agreement, which permits enforcement claims.
- Tribunal concludes it may exercise jurisdiction ratione personæ because the issues arise directly out of Applicant‘s Fund employment.
- Tribunal finds the Application is not "clearly inadmissible" (Rule XII, para. 1) and denies the Fund‘s Motion for Summary Dismissal.
- Procedural consequence: exchange of pleadings pursuant to Rules VIII – X will resume; the Fund‘s Answer on the merits, Applicant‘s Reply and the Fund‘s Rejoinder will follow according to the Rules.

### Legal fees and costs
- Applicant requests legal fees and costs incurred in responding to the Motion for Summary Dismissal, "[r]egardless of the outcome on the merits of this case."
- Article XIV, Section 4 provides authority to order that reasonable costs incurred by the applicant, including counsel costs, be totally or partially borne by the Fund if the Tribunal concludes the application is well-founded in whole or in part; factors include the nature and complexity of the case, quality of work performed, and amount of fees relative to prevailing rates.
- Baker et al. (Baker I and Baker II) yielded an award of fees under exceptional circumstances where applicants prevailed on an earlier Motion for Summary Dismissal; fees were awarded insofar as they related to the earlier phase of proceedings.
- Tribunal determination in the instant case:
  - Because the Motion for Summary Dismissal is denied, pleadings on the merits will resume and the Tribunal will later have the opportunity to consider an award of legal fees and costs pursuant to Article XIV, Section 4.
  - The Tribunal finds no ground to grant Applicant‘s request for legal fees and costs at the present stage.
  - The Tribunal leaves open the possibility of revisiting attorney‘s fees for successfully defending against the Motion for Summary Dismissal at the time of its decision on the merits.

### Decision
- The Administrative Tribunal of the International Monetary Fund unanimously decides that:
  - The Fund‘s Motion for Summary Dismissal is denied.
- Signatories:
  - Catherine M. O‘Regan, President
  - Edith Brown Weiss, Judge
  - Francisco Orrego Vicuña, Judge
  - Catherine M. O‘Regan, President (signature)
  - Celia Goldman, Registrar (signature)
- Location and date: Washington, D.C., September 11, 2012

*Administrative Tribunal of the International Monetary Fund. Washington, D.C., September 11, 2012.*

### Introduction

### Introduction

### Hearing and procedural posture
- The Administrative Tribunal of the International Monetary Fund met on September 10 and 11, 2012, composed for this case of Judge Catherine M. O‘Regan, President, and Judges Edith Brown Weiss and Francisco Orrego Vicuña, to adjudge the Motion for Summary Dismissal of the Application brought by Mr. Brian Tosko Bello.
- Applicant was represented by Ms. Veronika Nippe-Johnson, Schott Johnson, LLP. Respondent was represented by Ms. Jennifer Lester, Assistant General Counsel, and Ms. Melissa Su Thomas, Counsel, IMF Legal Department.
- 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 case is limited to the question of admissibility of the Application. (Rule XII, paras. 1–8; Article X, Section 2(d) of the Statute.)
- The Tribunal did not hold oral proceedings on the Motion for Summary Dismissal because neither party requested them and they were not deemed useful. (Article XII of the Tribunal‘s Statute; Rule XIII, para. 1.)

### Procedural timeline (as recorded by the Tribunal)
- April 12, 2012: Mr. Tosko Bello filed an Application with the Administrative Tribunal.
- April 13, 2012: The Application was transmitted to Respondent.
- April 18, 2012: Registrar circulated within the Fund a notice summarizing the issues raised in the Application pursuant to Rule IV, para. (f).
- May 14, 2012: Respondent filed a Motion for Summary Dismissal (pursuant to Rule XII) and transmitted the Motion to Applicant the following day.
- June 15, 2012: Applicant filed an Objection to the Motion for Summary Dismissal.
- April 5, 2012: Applicant filed a Grievance with the Fund‘s Grievance Committee to preserve rights in either forum.
- June 1, 2012: Respondent filed in the Grievance Committee a Motion to Dismiss the Grievance for lack of subject matter jurisdiction.

### Factual background of the dispute
- Applicant began employment with the Fund on March 1, 2001.
- The Fund announced a downsizing initiative in early 2008 to trim and reshape its workforce; staff were given a window from March 1-April 21, 2008 in which to volunteer.
- Some 492 volunteers separated under the beneficial terms of the downsizing exercise.
- The Fund established an intranet website titled “Exploring Your Options” as a source of practical information for potential volunteers. Staff Bulletin No. 08/03 (Refocusing and Modernizing the Fund: The Framework for the Downsizing Exercise) (February 29, 2008), p. 2, referred staff to that website.
- The intranet Q&A stated, in part:
  - Q. If I volunteer and take a package, is there a specific rule that will prevent me from being hired by the Fund sometime in the future?
  - A. No. The Fund has no prohibition from being reemployed in the future because you have taken a separation package. You may not be reemployed at the Fund during the separation leave or the period that it would cover if you take the separation leave as a lump sum. There also are some restrictions on reemployment while you are also receiving a pension.
- On April 21, 2008, Applicant requested voluntary separation under the downsizing program; on May 2, 2008, his request was accepted.
- By letter of May 19, 2008, HRD confirmed administrative arrangements and stated, inter alia, that the memorandum represented a full and final resolution and release of any and all demands and claims by the Applicant arising out of or in connection with his Fund employment to date, other than the enforcement of the agreement.
- The May 19, 2008 letter confirmed Applicant would receive, as of the effective date of his separation, a separation benefit in the form of a lump-sum payment equivalent to 7.5 months of his net annual salary.
- Applicant‘s separation from the Fund became effective on May 13, 2009.

### Adoption and communication of the contested policy
- In the year in which most volunteers separated, the Fund re-considered the general rule relating to re-employment and, citing concerns about possible “reputational risk,” adopted a policy not to re-hire volunteers who separated under the downsizing.
- On April 2, 2009, HRD communicated the new policy to Senior Personnel Managers (SPMs) via a “Strictly Confidential” email stating, in part:
  - “Just to reconfirm policy on this issue, for yo[u]r information: Management has decided that we do not at this stage envisage the re-hiring of volunteers, either as regular staff (fixed-term or limited-term) or as contractuals. We mentioned this at our recent SPM meeting, but it may not have been fully clear as we are still getting some proposals. We‘ll be grateful for your cooperation in implementing this policy.”
- The Fund explains the intranet posting by noting that as a general matter staff members who receive SBF [Separation Benefits Fund] benefits become eligible for re-employment by the Fund after the end of the period of time corresponding to those benefits, and that the Q&A on “Exploring Your Options” explained that long-standing policy.

### Events leading to the Application
- According to Applicant, in January 2012 he was contacted by an official of his former department who extended a verbal offer for a contractual appointment.
- January 11, 2012: Applicant inquired by email to the HRD Director about his eligibility to apply for the position.
- January 12, 2012: HRD Director notified Applicant by email that “[b]ecause you left under the downsizing initiative, you are not eligible to compete for any contracts at the Fund.”

### Channels of administrative review and timeliness issues
- Article V, Section 1, of the Tribunal‘s Statute requires exhaustion of available channels of administrative review when the Fund has established such channels before filing with the Tribunal.
- Article VI sets time limits:
  - An application challenging an individual decision must be filed within three months after exhaustion of administrative review.
  - An application challenging a regulatory decision must be filed within three months of the announcement or effective date of the decision, whichever is later; the illegality of a regulatory decision may be asserted at any time in support of an admissible application challenging an individual decision taken pursuant to such regulatory decision.
- Applicant seeks to bring a direct challenge to the contested policy as a “regulatory decision” pursuant to Article VI, Section 2, but also invoked the Fund‘s Grievance Committee (filed April 5, 2012) to preserve rights and to exhaust administrative channels in the alternative.
- The Tribunal observed that Applicant seeks rescission of both the contested policy and the decision applying it in his individual case and that his complaint against the individual decision rests entirely on a challenge to the underlying policy, with no allegations specific to the application of the policy in his case.
- The Tribunal concluded that further proceedings in the Grievance Committee would not serve the purposes of administrative review and that Applicant has satisfied the exhaustion requirement of Article V, Section 1.

### Jurisdictional issue presented
- Respondent filed a Motion for Summary Dismissal on May 14, 2012, contending the Tribunal lacks jurisdiction ratione personæ over a former staff member who challenges denial of eligibility for re-employment.
- The Fund also filed in the Grievance Committee a Motion to Dismiss the Grievance on June 1, 2012, arguing lack of subject matter jurisdiction because Applicant‘s claim rests on the legality of the policy itself rather than on the correctness of its application in his individual case.
- The Tribunal noted that it need not decide at the summary dismissal stage whether the contested policy qualifies as a “regulatory decision” for the purpose of Article VI, because Applicant has identified an individual decision giving effect to the policy and Article VI, Section 2, allows the illegality of a regulatory decision to be asserted in support of an admissible application challenging an individual decision.

*Administrative Tribunal of the International Monetary Fund — Introduction (j2012-3)*

### 22.      The parties‘ principal arguments as presented by Applicant in his Application and his

### 22.      The parties‘ principal arguments as presented by Applicant in his Application and his Objection to the Motion, and by Respondent in its Motion for Summary Dismissal may be summarized as follows.

### Applicant‘s contentions on the merits
- The later-adopted policy barring the re-employment of former staff members who separated voluntarily under the terms of the 2008 Fund-wide downsizing exercise directly contravenes written information provided by the Fund, which was reasonably relied upon by staff members including Applicant, in deciding to opt for separation under that program.
- The contested policy discriminates impermissibly against staff members who separated voluntarily under the 2008 downsizing vis-à-vis other former Fund staff members in respect of eligibility for re-employment.
- The Fund‘s policy against re-employment of staff members who separated voluntary under the 2008 downsizing is not supported by any proper business rationale.
- The contested policy has been implemented in the absence of fair and proper procedures.
- Applicant seeks as relief:
  - a. rescission of the HRD Director‘s January 12, 2012 decision that Applicant was not eligible for appointment to a contractual vacancy in the Fund;
  - b. rescission of the Fund‘s policy against re-hiring (either as regular staff or contractual) former staff members who separated voluntarily under the 2008 downsizing exercise;
  - c. compensation in the amount of one-year‘s salary as ―compensatory and moral damages‖; and
  - d. legal fees and costs incurred in pursuing his case before the Grievance Committee and the Administrative Tribunal, including those incurred in responding to the Motion for Summary Dismissal.

### Respondent‘s contentions on admissibility
- The Application is ―clearly inadmissible‖ (Rule XII, para. 1) for lack of jurisdiction ratione personæ.
- The drafters of the Tribunal‘s Statute did not contemplate that the Tribunal would have jurisdiction to consider a challenge by a person not currently on the staff of the Fund to a decision not to select him for employment opportunities. Applicant is in the same position as any other external job seeker.
- An application in the Tribunal by a former staff member must arise from the prior relationship between the staff member and the Fund. That condition is not met in this case.
- There was no firm, individualized commitment of re-employment in this case that might, under some circumstances, give rise to a contractual obligation and thus a receivable claim.

### Applicant‘s contentions on admissibility
- Applicant challenges a ―regulatory decision‖ of the Fund that is within the Tribunal‘s subject matter jurisdiction.
- Applicant, as a member of the group of former staff members who separated voluntarily under the 2008 Fund-wide downsizing exercise, is ―adversely affected‖ by the contested policy within the meaning of Article II of the Tribunal‘s Statute.
- Applicant‘s challenge is timely, as he filed his Application within three months of being notified of the challenged policy.
- Applicant‘s situation differs fundamentally from that of any other external unsuccessful job seeker.
- Former staff members may resort to the Fund‘s dispute resolution bodies.

### Consideration of the Admissibility of the Application
- Question presented (para. 23):
  - Whether Applicant, as a former member of the staff of the Fund who separated voluntarily under the terms of the 2008 Fund-wide downsizing program, is within the Tribunal‘s jurisdiction ratione personæ to contest the policy later adopted by the Fund barring the re-employment of such former staff members and the application of that policy in his individual case.
- Tribunal‘s jurisdiction ratione personæ (para. 24) is prescribed in relevant part:
  - Quote from Statute, Article II, Section 1.a.: "The Tribunal shall be competent to pass judgment upon any application . . . by a member of the staff challenging the legality of an administrative act adversely affecting him."
  - Statute, Article II, Section 2.c.(i) defines "member of the staff" as "any person whose current or former letter of appointment, whether regular or fixed-term, provides that he shall be a member of the staff."
  - The Tribunal has affirmed that its jurisdiction is conferred exclusively by its Statute and that it may not exercise powers beyond those granted by that Statute.
- Respondent reliance on Statutory Commentary (para. 25):
  - Cited statement: "The statute would not allow unsuccessful candidates to the staff to bring claims before the tribunal." Commentary on the Statute, p. 15.
  - Respondent’s position: Applicant "stands in the same position as any other would-be job applicant who is disappointed not to have been selected for a position" and falls within the class intended to be excluded from Tribunal jurisdiction ratione personæ.
- Tribunal analysis and precedents:
  - Tribunal finds Applicant‘s status is not the same as that of any other job seeker because the contested policy differentiates former staff who separated under the 2008 downsizing from other job seekers by deeming them ineligible for future Fund employment; that distinction arises directly from their prior relationship with the Fund (para. 26).
  - Precedent: Mr. M. D’Aoust v. IMF, IMFAT Judgment No. 1996-1 (April 2, 1996) — Tribunal exercised jurisdiction where contested decision taken prior to employment thereafter affected the applicant as a member of the staff (para. 27).
  - Distinction from Mr. “A” (IMFAT Judgment No. 1999-1) where applicant had "never become a member of the Fund‘s staff" (para. 27).
  - Tribunal acknowledges former staff may bring applications alleging "failure by the Fund to adhere to a legally-binding commitment" (para. 28).
  - Applicant‘s separation letter releases the Fund from claims arising out of his employment up to the agreement date but expressly excludes claims for "enforcement of this agreement" (para. 28).
  - Precedent: Mr. “V” v. IMF, IMFAT Judgment No. 1999-2 (August 13, 1999) — Tribunal exercised jurisdiction over breach of settlement and release agreement (para. 28).
- Applicant alleges unilateral and retroactive amendment of the understanding under which he separated regarding eligibility for future Fund employment (para. 29).
  - Respondent contends there was "no firm, individualized commitment of re-employment" and thus no contractual obligation breached (para. 29).
- Tribunal conclusion on admissibility:
  - Tribunal has jurisdiction to decide claims for failure by the Fund to adhere to a legally binding commitment; Applicant alleges such a breach — the question of breach goes to the merits, not admissibility (para. 30).
  - Two grounds for jurisdiction in this case (para. 31):
    - The contested policy expressly distinguishes former staff who separated voluntarily under the beneficial terms of the downsizing from other job seekers.
    - Applicant asserts violation of a material term of his separation agreement, which permits enforcement claims.
  - Tribunal concludes it may exercise jurisdiction ratione personæ because the issues arise directly out of Applicant‘s Fund employment (para. 31).
  - Tribunal finds the Application is not "clearly inadmissible" (Rule XII, para. 1) and denies the Fund‘s Motion for Summary Dismissal (paras. 32 and 33).
  - Procedural consequence: exchange of pleadings pursuant to Rules VIII – X will resume; the Fund‘s Answer on the merits, Applicant‘s Reply and the Fund‘s Rejoinder will follow according to the Rules (para. 33).

### Legal Fees and Costs
- Applicant requests legal fees and costs incurred in responding to the Motion for Summary Dismissal, "[r]egardless of the outcome on the merits of this case." (para. 34)
- Tribunal precedent and statute:
  - Article XIV, Section 4 provides authority to order that reasonable costs incurred by the applicant, including counsel costs, be totally or partially borne by the Fund if the Tribunal concludes the application is well-founded in whole or in part; factors include the nature and complexity of the case, quality of work performed, and amount of fees relative to prevailing rates (footnote 13).
  - Baker et al. (Baker I and Baker II) yielded an award of fees under exceptional circumstances where applicants prevailed on an earlier Motion for Summary Dismissal; fees were awarded insofar as they related to the earlier phase of proceedings (paras. 34–35; footnotes 13–14).
- Tribunal determination in the instant case (para. 35):
  - Because the Motion for Summary Dismissal is denied, pleadings on the merits will resume and the Tribunal will later have the opportunity to consider an award of legal fees and costs pursuant to Article XIV, Section 4.
  - The Tribunal finds no ground to grant Applicant‘s request for legal fees and costs at the present stage.
  - The Tribunal leaves open the possibility of revisiting attorney‘s fees for successfully defending against the Motion for Summary Dismissal at the time of its decision on the merits.

### Decision
- FOR THESE REASONS the Administrative Tribunal of the International Monetary Fund unanimously decides that:
  - The Fund‘s Motion for Summary Dismissal is denied.
- Signatories:
  - Catherine M. O‘Regan, President
  - Edith Brown Weiss, Judge
  - Francisco Orrego Vicuña, Judge
  - Catherine M. O‘Regan, President (signature)
  - Celia Goldman, Registrar (signature)
- Location and date: Washington, D.C., September 11, 2012

---


_Source: https://www.imf.org/-/media/files/imfat/j2012-3.pdf_