## j2014-2 - Introduction

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### Case overview
- Judgment No. 2014-2: Mr. E. Weisman, Applicant v. International Monetary Fund, Respondent.
- Administrative Tribunal composition for the case: Judge Catherine M. O’Regan, President; Judges Andrés Rigo Sureda and Francisco Orrego Vicuña.
- Applicant: Mr. Ethan Weisman, Fund staff member; self-represented.
- Respondent representation: Ms. Juliet Johnson, Counsel, and Ms. Janet Morris, Counsel, IMF Legal Department.
- Subject of the challenge: the rule for calculating Time-in-Department (TID) for purposes of the A15 Mobility Support Program (A15 MSP), specifically the element treating a period of two years or more on secondment to another international organization as “freezing time” so that counting of time in department resumes upon return rather than restarting.

### Procedural history
- June 27, 2013: Applicant filed an Application with the Administrative Tribunal; transmitted to Respondent on June 28, 2013.
- July 9, 2013: Registrar circulated a notice pursuant to Rule IV, para. (f).
- August 12, 2013: Respondent filed its Answer.
- September 12, 2013: Applicant submitted his Reply.
- October 10, 2013: Respondent filed its Rejoinder.
- Applicant requested anonymity under Rule XXII; Respondent opposed anonymity.
- Neither party requested oral proceedings; Tribunal found written record adequate and held none.

### Anonymity request — Tribunal decision
- Applicant requested “Total anonymity” citing risk of retribution; sought advance decision on anonymity.
- Tribunal precedent cited: IMFAT Judgment No. 2013-4; IMFAT Judgment No. 2009-1; IMFAT Judgment No. 2012-1.
- Tribunal findings:
  - The challenge was a direct challenge to a regulatory decision, not a claim of misconduct or personal privacy (e.g., health or family relations).
  - Applicant’s asserted risk of reprisal was speculative; Fund internal law (Annex 6 (Retaliation) of GAO No. 33 (Conduct of Staff Members) (May 18, 2011)) prohibits retaliation and provides remedies.
  - Rule XXII requires “good cause” for anonymity; the Tribunal balances public justice against deterrence of applications.
- Conclusion: Applicant failed to show “good cause”; anonymity denied. Tribunal deferred anonymity decision until the Judgment on the merits.

### Applicant’s document production request and Tribunal ruling
- Applicant requested production under Rule XVII of:
  1. Documents showing how many A15 staff have been on secondment to an international organization, by year, for the last 7 years.
  2. All documents produced during HRD deliberations on establishing the A15 MSP rules regarding secondments.
- Respondent provided responsive documents with its Answer, including a table showing that, since 2007, three fungible Grade A15 macroeconomists, including Applicant, participated in reimbursed secondments to other international organizations; the other two staff have not yet returned to the Fund.
- Respondent stated no single document focuses exclusively on secondments.
- Tribunal conclusion: Respondent met the production request; no request remained pending.

### Factual background relevant to the TID rule and A15 MSP
- Applicant’s service history:
  - Joined the Fund in 1992 through the Economist Program (EP).
  - Served in current department since 2001.
  - Since 2003, held a Deputy Division Chief position at Grade A15.
  - Secondment to another international organization for two-year period November 2005 - November 2007.
- Institutional developments:
  - Late 2010: Fund undertook a Staff Survey (“2010 IMF Staff Survey” intranet posting).
  - Working Groups, including a Working Group on Internal Mobility, reported to Management in May 2012.
  - Working Group Report (May 7, 2012) recommended an MSP and stated: “[a]ll fungible economists who are approaching 7 years without inter-departmental mobility would participate in the MSP.”
  - Working Group Report note: “For the purpose of the MSP, time spent outside the Fund (e.g., on LWOP/IOF or LWOP/PR) does not count towards time in a department, i.e., the ‘clock is stopped’ for this period.” (Report, note 4.)
  - Appendix IV (Terms of Reference) envisioned initial application to fungible A14 economists with potential broadening to fungible A15 and B1-B3 staff within the next two years.
  - September 2012: Fund implemented initial MSP for Grade A14 economists.
- Implementation for A15:
  - April 5, 2013: Fund announced implementation of the A15 MSP to Grade A15 economist staff (Email from HRD to A15 Economist Staff, April 5, 2013) and posted “MSP for Fungible A15 Economists” and “Calculating Time-in-Department and Time-in-Grade for an A15 MSP” intranet postings.

### MSP objective and rationale (as articulated by the Fund)
- Purpose: “to facilitate interdepartmental mobility for fungible staff. Movement of experienced staff across the Fund promotes sharing of ideas and knowledge across functions and departments, contributing to continuous development for staff, and better solutions for our clients.”
- Rationale emphasized: breadth of experience complements depth; promotes sharing of ideas and knowledge across departments; contributes to continuous development and better client solutions.
- Announcement date: April 5, 2013.

### Eligibility, timing, and mandatory participation (Fact Sheet – MSPs for Fungible Economists, Summer 2013)
- Eligibility:
  - MSP for fungible A15 economists: fungible economist staff on open-ended appointments; currently at grade A15; in titled managerial positions; and have at least seven years in their current department and three years at grade A15 (“7&3”) are eligible.
  - Participation is mandatory for staff who meet the above criteria and have five years or longer at grade A15 (“7&5”).
  - Titled managerial positions at grade A15 include: Deputy Division Chief, Deputy Chief, Assistant to the Director, returning Resident Representative, etc.
- Timing:
  - Moves are open-ended and lateral.
  - Moves expected to take place in August 2013.
  - TID and Time-in-Grade (TIG) calculated as of the day before the transfer window; for first A15 MSP, calculations as of July 31, 2013.
- Process and matching:
  - Assignments and participants pooled by grade; Talent Plus profiles used; staff and departments rank preferences; matches binding if in top half of staff member’s list.
  - If matching not in top half, committee proposes another match; refusal of committee recommendation may result in binding committee match in next exercise.
  - Internal job market acceptance during MSP withdraws staff from MSP.
- Transfer window logistics:
  - Transfers envisioned within a four to six-week window.
  - Delays to transfer expected only on exceptional basis with IMC and HRD endorsement.
  - Mission travel and field assignments do not justify deferral.
- Exemptions and deferrals:
  - Staff intending to retire within two years are exempt.
  - Deferrals may be granted for parental leave, sick leave covering entire interview/discussion period, or health issues preventing travel with supporting medical opinion.
  - For field staff, timing decided by home department; returning staff expected to participate in MSP closest to projected return to headquarters.

### Definition of “fungibility”
- Staff entering the economist stream through either the Economist Program or midcareer (MC) panels are presumed fungible.
- Economists who joined before the MC panel process and worked in an area department are presumed fungible.
- Economists not meeting these requirements and wishing to participate are expected to pass the MC Panel before participating.

### Time-in-Department (TID) calculation rule (challenged element)
- General principle:
  - Time in Department and Time in Grade calculated as of the day before the transfer window; for first A15 MSP, TID and TIG calculated as of July 31, 2013.
- Counted as continuous TID:
  - Time as a contractual, regular, limited-term and fixed-term employee (except time as an EP) counts as TID.
  - Moves within one department do not restart TID.
  - Time in departments that merged, reorganized or changed name counts as continuous TID (examples: ICM to MCM, and OTM to ICD).
- Not counted as TID (time freezes):
  - Time as an EP in the current department is not counted.
  - Time in a Resident Representative office, or other overseas office, when reporting to the home department is not counted; time freezes during assignment and continues on return. If supervised by a different department and two years or longer the assignment qualifies as internal mobility and time restarts on return.
  - Time freezes during an External Assignment (EA) and continues on return to the home department. If the staff member returns to a different Fund department, time restarts.
  - EAs include: LWOP-IOF (including RTAC Resident Advisor assignments), LWOP IOF-spouse, LWOP for personal reasons; Study Leave; STEAP; Secondment to another international organization; and Staff Exchange (Swap) to another international organization.
- Events that restart TID:
  - Interdepartmental mobility two years or longer restarts TID on return to the home department.
  - Assignments supervised by a department other than the home department for two years or longer (Resident Representative or other overseas office) qualify as internal mobility and restart TID on return to HQ.
  - An open ended move to a new department—lateral or promotion—restarts TID.

### Applicant’s direct challenge and standing
- Challenge: whether a period of two years or more on secondment to another international organization should “restart the clock” for TID rather than “freeze time.”
- Applicant’s principal contentions:
  - The TID rule is unfair and unreasonable in treating secondments differently from internal mobility.
  - Secondment supervision is by the receiving institution, not the home department, so secondments should restart TID.
  - The TID rule is inconsistent with rules governing mobility for promotion from Grade A15 to B-level.
  - The rule was designed for the Applicant; relief sought is revision of the TID rule to treat secondment as equivalent to internal mobility for TID purposes.
- Standing and timeliness:
  - Application challenging a regulatory decision must be filed within three months of its announcement or effective date; Applicant had three months from April 5, 2013 and filed on June 27, 2013.
  - Without a change in the TID rule as it relates to secondments, Applicant would be required to participate in the A15 MSP as of summer 2014 (application to Applicant deferred from summer 2013 to summer 2014 for “business continuity” reasons).

### Respondent’s defense of the TID rule
- The TID rule is a legitimate exercise of the Fund’s discretionary authority to promote interdepartmental mobility and is rationally related to MSP objectives.
- The rule ensures economists gain experience in and contribute to multiple Fund departments.
- Calculation of TID resets to zero only when interdepartmental mobility goals are satisfied—completion of an assignment of two years or longer in another Fund department.
- An external assignment, including secondment to another international organization, does not restart the TID clock and instead always freezes it for the assignment period because such assignments do not provide the interdepartmental mobility that is the MSP’s core objective.
- No evidence HRD considered particular individuals in designing the rule.

### Standard of review for regulatory decisions (Tribunal guidance)
- Tribunal’s review of regulatory decisions is “quite narrow,” with deference to institutional decision-making.
- Deference is “at its height” for regulatory decisions.
- Discretionary authority is circumscribed by internal law (Articles of Agreement, By-Laws and Rules and Regulations, General Administrative Orders) and unwritten sources.
- Tribunal applies an abuse-of-discretion framework (citing World Bank Administrative Tribunal standard): changes must be based on proper consideration of relevant facts; reasonably related to the objective; made in good faith and not prompted by improper motives; not discriminate in an unjustifiable manner; and made reasonably to avoid excessive harm.
- For differential employment benefits, Tribunal applies a “rational nexus” test:
  1. Proffered reasons must be supported by evidence and could have been reached on facts accurately gathered and properly weighed.
  2. There must be a rational nexus between the classification of persons and the objective of the classification.
- Policy-makers may choose among reasonable alternatives; the “rational nexus” does not require a perfect fit and may rest on generalizations.
- The rule of nondiscrimination is a substantive limit; greater scrutiny applies where universally recognized human rights are implicated.

### Tribunal analysis and findings on secondments and TID
- Tribunal found it consistent with MSP purposes that only interdepartmental transfer within the Fund—and not time on external secondment—will restart the period for calculating seven years in the department.
- Tribunal held there is a “rational nexus” between:
  - MSP objective to promote experience with multiple Fund departments (cross-fertilization, mitigating silo effects, sharing ideas and knowledge), and
  - The classification that does not credit external secondments as interdepartmental mobility for TID calculation purposes.
- Tribunal conclusions:
  - “Mobility” for MSP purposes means interdepartmental mobility within the Fund; MSP derived from recommendations of the Working Group on Internal Mobility and the Fund chose that definition.
  - Similarities between secondments and interdepartmental mobility are not relevant to MSP purposes because secondments do not further intra-Fund cross-fertilization and anti-silo objectives.
  - The differentiation between external secondment and internal Fund mobility is neither irrational nor arbitrary.
  - It was neither unreasonable nor unfair for the Fund to distinguish between secondments and internal mobility for calculating TID under the A15 MSP.

### Applicant’s argument re: promotion (A15 to B-level) rules and Tribunal response
- Applicant cited an intranet posting (“Mobility Requirement for Economists”) stating the internal mobility requirement “may be waived if you have completed an approved external assignment,” arguing external assignments are treated as “equivalent” to internal mobility for promotion purposes.
- Tribunal found the “may be waived” language does not make external and internal mobility equivalent under B List eligibility rules.
- Tribunal emphasized promotion criteria serve policies and purposes that may differ from MSP purposes; treatment of secondments for TID need not mirror promotion rules.
- Conclusion: Applicant misread the rule; secondments are not treated as equivalent to internal mobility for A15 to B-level promotion procedures in a manner that undermines the MSP TID rule.

### Allegation of animus and Tribunal finding
- Applicant alleged the TID rule targeted him because, since 2007, three fungible Grade A15 macroeconomists, including Applicant, participated in reimbursed secondments and the other two had not returned, making Applicant uniquely affected.
- Respondent denied HRD designed the rule with any individual in mind and noted Grade A14 economists are affected by the same policy.
- Tribunal found no evidence the rule was designed with any particular staff member in mind and rejected the animus allegation.

### Tribunal conclusions and decision
- Applicant did not meet burden of showing the Fund abused its discretion in adopting the challenged TID rule.
- Tribunal findings:
  - There is a rational nexus between MSP purpose and the distinction between external secondments and internal Fund mobility for TID.
  - The contested element of the TID rule is neither unreasonable nor unfair.
  - The rule is not unreasonable in light of promotion-to-B-level rules.
  - Adoption of the rule was not improperly motivated by animus against Applicant.
- Decision: The Administrative Tribunal of the International Monetary Fund unanimously denies the Application of Mr. Weisman.
- Signatories and date:
  - Catherine M. O’Regan, President
  - Andrés Rigo Sureda, Judge
  - Francisco Orrego Vicuña, Judge
  - Celia Goldman, Registrar
  - Location and date: Washington, D.C. February 26, 2014

*Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2014-2 (Mr. E. Weisman v. International Monetary Fund), Decision, February 26, 2014.*

### Introduction ......................................................................................... . 1

### j2014-2 - Introduction

### Case overview
- Judgment No. 2014-2: Mr. E. Weisman, Applicant v. International Monetary Fund, Respondent.
- The Administrative Tribunal of the International Monetary Fund met on February 26, 2014, composed for this case of Judge Catherine M. O’Regan, President, and Judges Andrés Rigo Sureda and Francisco Orrego Vicuña.
- Applicant: Mr. Ethan Weisman, a Fund staff member; represented himself.
- Respondent: International Monetary Fund; represented by Ms. Juliet Johnson, Counsel, and Ms. Janet Morris, Counsel, IMF Legal Department.
- Subject of the challenge: the rule for calculating Time-in-Department (TID) for purposes of the A15 Mobility Support Program (A15 MSP), specifically the element treating a period of two years or more on secondment to another international organization as “freezing time” so that counting of time in department resumes upon return rather than restarting.

### Parties’ principal contentions
- Applicant’s principal contentions:
  - The TID rule is unfair and unreasonable in treating secondments differently from internal mobility (assignment for two years or more to another Fund department).
  - Time spent on secondment should “restart the clock” upon return, delaying mandated participation in the A15 MSP.
  - Seeks revision of A15 MSP rules to treat secondment as equivalent to internal mobility for TID calculation.
- Respondent’s principal contentions:
  - The challenged rule is a proper exercise of the Fund’s discretionary authority.
  - The rule is rationally related to the A15 MSP’s legitimate purpose to encourage mobility among Fund departments by fungible economist staff.
  - The differentiation between internal mobility and external secondments was deliberate and adopted after extended consideration.

### Procedural history
- June 27, 2013: Applicant filed an Application with the Administrative Tribunal; transmitted to Respondent on June 28, 2013.
- July 9, 2013: Registrar circulated a notice summarizing the issues pursuant to Rule IV, para. (f).
- August 12, 2013: Respondent filed its Answer.
- September 12, 2013: Applicant submitted his Reply.
- October 10, 2013: Respondent filed its Rejoinder.
- Applicant requested anonymity and an advance decision on that request; Respondent opposed anonymity.

### Anonymity request — Tribunal’s analysis and decision
- Applicant requested “Total anonymity” under Rule XXII to “avoid risk of retribution,” and sought a decision on anonymity prior to the Judgment on the merits.
- Tribunal precedent cited: IMFAT Judgment No. 2013-4 (Mr. “HH”) and IMFAT Judgment No. 2009-1 (Mr. S. Ding), and IMFAT Judgment No. 2012-1 (Ms. N. Sachdev).
- Tribunal considered whether an advance decision on anonymity was appropriate and concluded to defer the anonymity decision until the Judgment on the merits, stating: “anonymity of applicants remains the exception and not the rule.”
- Tribunal’s findings on anonymity:
  - Applicant’s challenge is a direct challenge to a regulatory decision and does not concern allegations of misconduct or personal privacy such as health or family relations.
  - Applicant’s asserted risk of reprisal is speculative; the Fund’s internal law prohibits retaliation and provides remedies.
  - The Tribunal must balance public justice against the possibility of deterring applicants from seeking redress; Rule XXII requires “good cause” for anonymity.
  - Conclusion: Applicant failed to show “good cause” for granting anonymity; anonymity denied.

### Applicant’s request for production of documents
- Applicant requested production under Rule XVII:
  1. Documents showing how many A15 staff have been on secondment to an international organization, by year, for the last 7 years.
  2. All documents produced in the course of deliberations by HRD over the establishment of the A15 MSP rules with regards to secondments.
- Respondent provided responsive documents with its Answer, including a table showing that, since 2007, three fungible Grade A15 macroeconomists, including Applicant, have participated in reimbursed secondments to other international organizations, and noted that the other two staff members have not yet returned to the Fund.
- Respondent attached documents relating to adoption of the MSP and stated no single document focuses exclusively on secondments.
- Applicant did not reiterate the requests in his Reply.
- Tribunal conclusion: Respondent met the production request; no request remains pending.

### Oral proceedings
- Article XII of the Tribunal’s Statute and Rule XIII, para. 1 govern oral proceedings.
- Neither party requested oral proceedings.
- Tribunal decided oral proceedings were not useful in light of the adequacy of the written record; none were held.

### Factual background relevant to the TID rule and A15 MSP
- Applicant’s service history:
  - Joined the Fund in 1992 through the Economist Program (EP).
  - Has served in his current department since 2001.
  - Since 2003, held a Deputy Division Chief position at Grade A15.
  - On secondment to another international organization for the two-year period November 2005 - November 2007.
- Institutional developments leading to the MSP:
  - Late 2010: Fund undertook a Staff Survey (“2010 IMF Staff Survey” intranet posting).
  - Working Groups constituted in response to the Staff Survey, including a Working Group on Internal Mobility; reports submitted to Management in May 2012.
  - December 2011 - April 2012: Working Group on Internal Mobility consulted with Senior Personnel Managers (SPMs), the Staff Association Committee (SAC), and other stakeholders.
  - Working Group Report (“Career Development Support Mechanisms for Economists: Strengthening Internal Mobility while Enhancing the Stability of Country Teams,” Report of a Working Group on Internal Mobility (May 7, 2012)):
    - Recommended a mobility support program (MSP) to foster career development of fungible economists.
    - Proposed that “[a]ll fungible economists who are approaching 7 years without inter-departmental mobility would participate in the MSP.”
    - Noted that “[f]or the purpose of the MSP, time spent outside the Fund (e.g., on LWOP/IOF or LWOP/PR) does not count towards time in a department, i.e., the ‘clock is stopped’ for this period.” (Report, note 4.)
    - Appendix IV (Terms of Reference) stated participation “would be the norm after 7 years in a department” with initial application to fungible A14 economists and potential broadening to fungible A15 and B1-B3 staff within the next two years.
    - September 2012: Fund implemented initial MSP for Grade A14 economists.
- Implementation for A15:
  - April 5, 2013: Fund announced implementation of the A15 MSP to Grade A15 economist staff via email, directing staff to an intranet posting that included the challenged TID calculation rule (“MSP for Fungible A15 Economists” intranet posting; “Calculating Time-in-Department and Time-in-Grade for an A15 MSP” intranet posting).

### Issues for consideration listed by the Tribunal
- (i) What is the standard of review that governs challenges to “regulatory decisions” of the Fund?
- (ii) Whether the Fund abused its discretion in adopting the rule that a period of two years or more on secondment to another international organization “freezes time” such that the counting of time in department resumes—rather than restarts—upon return.
  - (a) Whether the TID rule is unfair or unreasonable in failing to treat secondment and internal mobility in the same manner.
  - (b) Whether treatment of secondments is unreasonable in light of rules governing eligibility for the “B List.”
  - (c) Whether the decision was improperly motivated by animus against Applicant.

### Tribunal practice and relevant internal law references
- Tribunal emphasizes that Rule XXII (anonymity) is an exception to public naming and requires “good cause.”
- Tribunal cites Fund conduct and anti-retaliation provisions: Annex 6 (Retaliation) of GAO No. 33 (Conduct of Staff Members) (May 18, 2011), which encourages use of channels for speaking up and provides that “any adverse decision motivated by retaliation would be invalid.”
- Tribunal reiterated that an applicant’s bare assertion of potential adverse employment consequences does not, of itself, justify anonymity.

*Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2014-2 (Mr. E. Weisman v. International Monetary Fund).*

### 31.      The email notification advised:

### 31.      The email notification advised:

### MSP objective and rationale
- The Fund is embarking on its first Mobility Support Program (MSP) for fungible A15 economists.
- Purpose: “to facilitate interdepartmental mobility for fungible staff. Movement of experienced staff across the Fund promotes sharing of ideas and knowledge across functions and departments, contributing to continuous development for staff, and better solutions for our clients.”
- Rationale emphasized: breadth of experience complements depth, promotes sharing of ideas and knowledge across departments, and contributes to continuous development and better client solutions.
- Announcement date (email): April 5, 2013. (Email from HRD to A15 Economist Staff, April 5, 2013.) (Emphasis in original.)

### Eligibility, timing, and mandatory participation (Fact Sheet – MSPs for Fungible Economists, Summer 2013)
- Eligibility summary:
  - MSP for fungible A15 economists: fungible economist staff on open-ended appointments; currently at grade A15; in titled managerial positions; and have at least seven years in their current department and three years at grade A15 (“7&3”) are eligible to participate.
  - Participation is mandatory for staff who meet the above criteria and have five years or longer at grade A15 (“7&5”).
  - Titled managerial positions at grade A15 include: Deputy Division Chief, Deputy Chief, Assistant to the Director, returning Resident Representative, etc.
- Timing:
  - Moves are open-ended, and lateral.
  - Moves are expected to take place in August 2013.
  - Time in Department (TID) and Time in Grade (TIG) will be calculated as of the day before the transfer window is scheduled to open; for the first A15 MSP the transfer window is expected to be August 2013, accordingly TID and TIG calculated as of July 31, 2013.
- Process and matching:
  - Assignments and participants are pooled (A14s with A14s; A15s with A15s).
  - Staff develop/update their Talent Plus profile; departments receive Talent Plus profiles; staff receive assignment descriptions; staff discuss assignments and interests with participating departments.
  - Staff rank-order assignments; departments rank staff.
  - A match to an assignment in the top half of a staff member’s list is binding on the staff member and the departments.
  - If a match is not in the top half, the committee will propose another match; staff who refuse a committee recommendation and do not move before the next exercise will be bound by any match proposed by the committee in the next exercise.
  - If an internal job market position is accepted during MSP participation, the SPM will inform HRD and the staff member will be withdrawn from the MSP; the submitting department’s assignment remains in the pool.
- Transfer window logistics and delays:
  - Transfers are envisioned to take place within a four to six-week window; specific dates agreed between home and receiving departments.
  - Delays expected to be requested only on exceptional basis; a joint proposal to delay requires endorsement of the Internal Mobility Committee (IMC) and HRD approval.
  - Mission travel and field assignments are integral duties and do not justify deferring participation.
- Withdrawals and swaps:
  - Volunteers may decline a match if it is not to one of the assignments in the top half of their list.
  - Once the pool is created, it is set; departments and staff may mutually rank each other #1 to optimize matching chances.
- Exemptions and deferrals:
  - Staff intending to retire within two years are exempt.
  - Deferrals may be granted for parental leave (maternity, paternity, adoption), sick leave covering the entire interview/discussion period, or health issues preventing travel with medical opinion indicating continuation beyond the transfer date; annual leave immediately after parental leave is not a basis for deferral.
  - For staff in the field, timing decided by home department in consultation with the staff member; returning staff expected to participate in the MSP closest to their projected return to headquarters.

### Definition of “fungibility” and panel expectations
- Fungibility:
  - Staff who entered the economist stream through either the Economist Program or midcareer (MC) panels are presumed fungible.
  - Economists who joined before the MC panel process and have worked in an area department are presumed fungible.
  - Economists who do not meet these requirements and wish to participate are expected to pass the MC Panel before participating.

### Time-in-Department (TID) calculation rule (as challenged)
- General principle:
  - Time in Department and Time in Grade calculated as of the day before the transfer window; for first A15 MSP, TID and TIG calculated as of July 31, 2013.
- Counted as TID (time uninterrupted):
  - Time as a contractual, regular, limited-term and fixed-term employee—with the exception of time as an EP—is counted as TID. Moves within one department do not restart TID.
  - Time spent in departments that subsequently merged, reorganized or changed name counts as continuous TID (e.g., ICM to MCM, and OTM to ICD).
- Not counted as TID (time freezes):
  - Time as an EP in the current department is not counted towards TID.
  - When reporting to the home department, time in a Resident Representative office, or other overseas office, is not counted. Time freezes during this assignment and continues when the staff member returns to the home department. (When the assignment is supervised by a different department and two years or longer the assignment qualifies as internal mobility and time restarts on return to the home department).
  - Time freezes during an External Assignment (EA) and continues when the staff member returns to the home department. If s/he returns to a different Fund department, time restarts.
  - EAs include: LWOP-IOF (including RTAC Resident Advisor assignments), LWOP IOF-spouse, LWOP for personal reasons; Study Leave; STEAP; Secondment to another international organization; and Staff Exchange (Swap) to another international organization.
- Events that end, or restart TID:
  - Interdepartmental mobility two years or longer restarts TID on return to the home department. Example: a WHD economist returning to WHD after two years in a temporary assignment in APD would have TID for WHD restart as of date of return to WHD.
  - When supervised by a department other than the home department for two-years or longer, an assignment in a Resident Representative office or other overseas office qualifies as internal mobility; accordingly, on return to HQ TID calculation restarts.
  - An open ended move to a new department—lateral or promotion, through the vacancy system or otherwise—restarts TID.

### Applicant’s direct challenge and standing
- Applicant challenges the TID rule treating two years or more of secondment to another international organization as “freezing time” for TID purposes under the A15 MSP.
- Applicant’s principal contentions include:
  - The rule is unfair and unreasonable.
  - Secondment to another international organization should be treated as equivalent to internal mobility and should “restart the clock” for TID.
  - The rule fails to recognize that supervision during secondment is performed by the other organization, not the home department.
  - The TID rule is inconsistent with rules governing mobility for promotion from Grade A15 to B-level.
  - The rule was designed only for the Applicant; Applicant alleges the HRD rule on secondment was designed for one individual staff member.
  - Relief sought: revision of the TID rule to treat secondment to another international organization as equivalent to internal mobility for TID purposes.
- Procedural context:
  - Applicant asserts a “direct” challenge to a “regulatory decision” of the Fund; Respondent does not dispute Tribunal’s jurisdiction.
  - Applicant has standing: absent a change in the TID rule as it relates to secondments, Applicant will be required to participate in the A15 MSP as of summer 2014 (the application of the rule to Applicant was deferred from summer 2013 to summer 2014 for “business continuity” reasons).
  - Under Article VI, Section 2 of the Tribunal’s Statute, an application challenging a regulatory decision must be filed within three months of its announcement or effective date; Applicant had three months from April 5, 2013 to bring a direct challenge; Applicant filed his Application on June 27, 2013.

### Respondent’s principal contentions in defense of the TID rule
- The TID rule is a legitimate and appropriate exercise of the Fund’s discretionary authority to promote interdepartmental mobility and is rationally related to MSP objectives.
- The rule was designed to ensure economists gain experience in and contribute to multiple departments, improving the Fund’s overall operations.
- Calculation of TID will reset to zero only when interdepartmental mobility goals have been satisfied—i.e., by completion of an assignment of two years or longer in another Fund department. Secondment to another international organization does not satisfy that goal.
- An external assignment, including a secondment to another international organization, never restarts the TID clock and instead always freezes it for the period of the assignment because such assignments do not provide the interdepartmental mobility that is the MSP’s core objective.
- There is no evidence HRD considered particular individuals in designing the rule.

*Email from HRD to A15 Economist Staff, April 5, 2013; “MSP for Fungible A15 Economists” intranet posting; Fact Sheet – Mobility Support Programs (MSPs) for Fungible Economists, Summer 2013; “Calculating Time-in-Department and Time-in-Grade for an A15 MSP” intranet posting (all as presented by the International Monetary Fund).*

### 44.      The Application raises the following issues for the consideration of the Administrative

### 44. The Application raises the following issues for the consideration of the Administrative Tribunal

### Standard of review for regulatory decisions
- The Statutory Commentary explains that the Tribunal has competence to review regulatory decisions but that the scope of that review is “quite narrow,” requiring respect for principles protecting institutional decision-making authority.
- The Tribunal has held that its deference to the Fund’s decision-making is “at its height when the Tribunal reviews regulatory decisions (as contrasted with individual decisions).”
- The Fund’s discretionary authority to amend terms and conditions of employment is circumscribed by internal law, including written sources (Articles of Agreement, By-Laws and Rules and Regulations, General Administrative Orders) and unwritten sources; these sources “apply to, and circumscribe, the exercise of discretionary authority by the Executive Board.”
- The World Bank Administrative Tribunal (de Merode, WBAT Decision No. 1 (1981)) standard, as repeatedly cited, frames abuse of discretion: changes must be based on proper consideration of relevant facts; reasonably related to the objective; made in good faith and not prompted by improper motives; not discriminate in an unjustifiable manner; and made in a reasonable manner seeking to avoid excessive and unnecessary harm.
- The Tribunal recognizes the rule of nondiscrimination as a substantive limit on discretionary authority and distinguishes between general equality claims and claims implicating universally recognized human rights, the latter requiring greater scrutiny.
- The Tribunal applies a “rational nexus” test when assessing differential employment benefits: (1) proffered reasons must be supported by evidence and could have been taken on the basis of facts accurately gathered and properly weighed; and (2) there must be a rational nexus between the classification of persons and the objective of the classification.
- The Tribunal accepts that policy-makers may choose among reasonable alternatives and that the “rational nexus” does not require a perfect fit and may rest on generalizations.

### Issue: Whether the Fund abused its discretion in treating secondments as “freezing time” for TID (A15 MSP)
- Applicant’s challenge:
  - Does the Fund abuse its discretion by adopting a rule that a period of two years or more on secondment to another international organization “freezes time” such that counting of time in department resumes—rather than restarts—upon return?
  - Is it unfair or unreasonable to treat time on secondment differently from time spent on “internal mobility,” i.e., assignment for two years or more to another Fund department?
  - Applicant contends the rule is “unfair and unreasonable” because supervision during a secondment is performed by the receiving institution, not the home department, and thus secondments should be treated like Resident Representative assignments performed outside home-department supervision.
  - Applicant asserts secondments provide “the same kind of enriching experiences, which is the fundamental purpose of mobility,” including changes in organization, supervisors, managers, work program, and relocation away from headquarters.
- Respondent’s position:
  - The decisive factor is whether the staff member spent time on assignment in a Fund department other than the home department.
  - Resident Representative and overseas office assignments supervised by a different Fund department satisfy interdepartmental mobility objectives; Resident Representative assignments remaining within the home department do not.
  - Time on external assignment (secondment) does not provide interdepartmental mobility and therefore “freezes” time for TID purposes.
  - The TID rules are “carefully designed to carry out the objective of the MSP, namely to ensure that economists both gain experience in—and contribute to the work of—multiple departments over their Fund careers.”

### Purposes of the MSP as articulated by the Fund
- The Fund communicated the MSP objectives as:
  - “The objective of the MSP is to facilitate interdepartmental mobility for fungible economist staff. Movement of experienced staff across the Fund promotes sharing of ideas and knowledge across functions and departments, contributing to continuous development of staff, and better solutions for our clients.” (Fact Sheet – Mobility Support Programs (MSPs) for Fungible Economists, Summer 2013; internal intranet posting)
  - Email to A15 Economist Staff (April 5, 2013): “Breadth of experience across the Fund complements depth of experience and contributes to continuous development. Moreover, it promotes sharing of ideas and knowledge across departments, and better solutions for our clients.”
- Respondent’s pleaded elaboration:
  - Staff movement across departments advances cross-fertilization of knowledge, ideas and expertise; improves communication between departments by mitigating the “silo effect”; benefits individual staff through career growth; and enhances the Fund’s service to member countries.

### Tribunal analysis and findings on the TID rule and secondments
- The A15 MSP requires fungible Grade A15 economists to transfer between Fund departments every seven years.
- The Tribunal finds it is consistent with MSP purposes that only interdepartmental transfer—and not time spent on external secondment—will restart the period for calculating seven years in the department.
- There is a “rational nexus” between:
  - The MSP objective to promote experience with multiple Fund departments (cross-fertilization, mitigating silo effects, sharing ideas and knowledge), and
  - The differential classification that does not credit external secondments as interdepartmental mobility for TID calculation purposes.
- The Tribunal concludes:
  - “Mobility” for MSP purposes means interdepartmental mobility within the Fund; MSP derived from recommendations of the Working Group on Internal Mobility and the Fund chose that definition.
  - Similarities between secondments and interdepartmental mobility (from Applicant’s perspective) are not relevant to MSP purposes because secondments do not further the MSP’s intra-Fund cross-fertilization and anti-silo objectives.
  - Given the MSP’s purposes, the differentiation between external secondment and internal Fund mobility is neither irrational nor arbitrary.
  - It was neither unreasonable nor unfair for the Fund to distinguish between secondments and internal mobility for calculating TID under the A15 MSP.

*The Tribunal (IMF Administrative Tribunal) — Judgment excerpts from the Application and Tribunal analysis in IMFAT proceedings.*

### 69.      Applicant additionally contends that the challenged TID rule is inconsistent with Fund

### j2014-2 - 69.      Applicant additionally contends that the challenged TID rule is inconsistent with Fund

### Applicant's contention on equivalence of secondment and internal mobility
- Applicant contends the challenged TID rule is inconsistent with Fund rules governing mobility in respect of promotion from A15 to B-level, arguing that those rules treat secondment as “equivalent to” internal mobility.
- Applicant quotes the “Mobility Requirement for Economists” intranet posting to show that the internal mobility requirement “may be waived if you have completed an approved external assignment” and that secondments to another international organization are listed among external mobility assignments that “allow the internal mobility requirement to be waived for promotion to the B-level.”
- The intranet posting excerpt states in relevant part:
  - “The Review Committee (RC) considers internal mobility when assessing A15 macroeconomists for the RC List (also known as ‘the B List’). Macroeconomists are expected to have worked for at least two years in another department (excluding the Economist Program period) to be eligible to advance to B1. If you have not met this requirement, you can only be promoted to a B-level macroeconomist position in a different department. This requirement may be waived if you have completed an approved external assignment . . . . (‘Mobility Requirement for Economists’ intranet posting.)”

### Tribunal's analysis of equivalence argument
- The Tribunal finds that the intranet posting’s statement that the internal mobility requirement “may be waived” where an external assignment has been completed does not make external and internal mobility “equivalent” under the rules governing eligibility for the B List.
- The Tribunal emphasizes that the promotion criteria are set in relation to policies and purposes that may differ from the purposes of the MSP; therefore, treatment of secondments in the TID rule need not mirror promotion rules.
- The Tribunal concludes that Applicant misreads the rule when he claims HRD “has set external mobility, such as secondment to another international organization, as equivalent to internal mobility for A15 to B-level promotion procedures.”

### Allegation that the TID rule was motivated by animus against Applicant
- Applicant alleges that because, since 2007, three fungible Grade A15 macroeconomists, including Applicant, have participated in reimbursed secondments to other international organizations, and the other two staff members have not yet returned to the Fund, he is the only staff member to be affected by the rule and that this “begs the question” of motivation.
- Applicant asserts that treating secondments as “freezing time” under the TID rule (thereby differing from internal mobility assignments for purposes of calculating TID) was improperly motivated by animus against him.
- Respondent replies:
  - There is no evidence HRD considered any particular individuals in designing a policy of general applicability to senior economists at Grade A15.
  - Grade A14 economists are affected by the same policy regarding the treatment of secondments for purposes of calculating TID.
  - Respondent denies a “single focus of the secondment rule on the Applicant.”
- The record shows:
  - The MSP program emerged directly from the results of the 2010 Staff Survey and the Report of the Working Group on Internal Mobility.
  - These origins were publicized to Fund staff (see Email from HRD to A15 Economist Staff, April 5, 2013).
- The Tribunal finds no evidence that the TID rule was designed with any particular staff member in mind and finds no merit to the argument that adoption of the rule was improperly motivated by animus against Applicant.

### Conclusions of the Tribunal
- The Tribunal concludes Applicant has not met his burden of showing that the Fund abused its discretion in adopting a rule that treats time spent on secondment as “freezing time” rather than “restarting the clock” for purposes of calculating time served in a single Fund department before interdepartmental mobility is required of Grade A15 fungible economists.
- The Tribunal finds:
  - There is a rational nexus between the purpose of the MSP—to promote interdepartmental mobility—and the distinction drawn by the TID rule between time spent on secondment to an external organization and time spent working in a Fund department different from the staff member’s home department.
  - Nothing unfair or unreasonable exists in the element of the TID rule contested by Applicant.
  - Applicant has not shown the rule is unreasonable in light of rules governing promotion to the B-level.
  - The adoption of the rule was not improperly motivated by animus against Applicant.
- Decision:
  - The Administrative Tribunal of the International Monetary Fund unanimously decides that: The Application of Mr. Weisman is denied.
  - Signatories:
    - Catherine M. O’Regan, President
    - Andrés Rigo Sureda, Judge
    - Francisco Orrego Vicuña, Judge
    - Celia Goldman, Registrar
  - Location and date: Washington, D.C. February 26, 2014

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_Source: https://www.imf.org/-/media/files/imfat/j2014-2.pdf_