## JUDGMENT No. 2016-4 — INTRODUCTION

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### Introduction and parties
- The Administrative Tribunal of the International Monetary Fund met on November 1, 2016, to adjudge an Application by Mr. Paulo Nogueira Batista, Jr. (Applicant) against the International Monetary Fund (Respondent).
- Tribunal composition: Judge Catherine M. O’Regan, President; Judges Edith Brown Weiss and Francisco Orrego Vicuña.
- Representation:
  - Applicant: represented himself.
  - Respondent: Ms. Diana Benoit, Senior Counsel, and Ms. Pheabe Morris, Counsel, IMF Legal Department.
- Core dispute: Applicant contests the SRP Administration Committee’s denial of his request to contribute retroactively to the Staff Retirement Plan (SRP) from the date he first became eligible in 2007. The Committee denied the request based on SRP Section 2.2(c), which permits enrollment only within the three-month period following an appointment.

### Procedural history (key filings and dates)
- Application filed January 25, 2016; supplemented February 26 and March 4, 2016.
- Application transmitted to Respondent on March 4, 2016.
- Registrar circulated a notice summarizing issues on March 15, 2016.
- Respondent’s Answer filed April 18, 2016.
- Applicant’s Reply submitted May 24, 2016.
- Fund’s Rejoinder filed June 30, 2016.
- Applicant Additional Pleading filed July 28, 2016; Respondent Comment filed August 4, 2016.
- Tribunal orders and document exchanges:
  - Tribunal ordered electronic forwarding of two emails; Fund transmitted the two emails electronically on September 19, 2016.
  - Applicant filed observations September 30, 2016; Fund filed a Comment October 6, 2016.
  - Tribunal denied Applicant’s request for independent technical examination of documents.

### Oral proceedings
- Neither party requested oral proceedings.
- Tribunal decided oral proceedings would not be useful and none were held.

### Factual background and documentary record
- Applicant’s initial appointment as member of the IMF Executive Board: April 9, 2007.
- SRP enrollment rule for Executive Directors: SRP Section 2.2(c) — written notice to the SRP Administration Committee within three months of appointment.
- Applicant did not elect participation following the April 9, 2007 appointment; elected participation upon reappointment on November 23, 2010.
- Documents produced by the Fund:
  - Appointment Checklist, April 9, 2007, containing: "Directors desiring to participate must so elect within three months of assuming duties. You will receive an e-mail regarding retirement insurance explaining your benefits under the SRP should you decide to participate. You will be asked to respond to the e-mail whether or not you wish to participate."
  - Initial Enrollment Notification Email, April 11, 2007, from HRD, SRP Enrollment, addressed "Dear New IMF Board or Staff Member", stating in part:
    - "Our records indicate that you are eligible to participate in the IMF Staff Retirement Plan (SRP). . . . If you decide to participate, you must enroll in the SRP within 90 calendar days from your Entry on Duty (EOD) date. (Please note that the SRP Election Form has been eliminated). You must respond directly to HRD, SRP Enrollment by email . . . ."
    - Attached a personalized projection of Plan benefits and advised: "If we do not receive your election to enroll in the SRP by the 90th calendar day, you will not be allowed to enroll in the SRP. However, at the end of your current appointment, if you are offered a new fixed-term appointment that is at least two years or more (for a member of the Board of Executive Directors, if you are re-elected) you will be eligible to enroll at that time; or if you are offered a 'regular appointment', then the participation in the SRP is automatic and mandatory."
    - Email header included the string "[/O=IMF/OU=WASHINGTON/CN=RECIPIENTS/CN=SRPENROLLMENT]".
  - 30th-day Reminder Email, May 9, 2007 — text identical to the initial enrollment email, subject "30th Day Reminder for the SRP Enrollment".
  - "Enrollment Email Notification Log" — table listing four email notifications by date and time sent, subject line, and Applicant’s name as Recipient, including a 60th-day reminder email, June 8, 2007, and a 90th-day reminder email, July 1, 2007, with terms "Read" and "Received" noted for the latter reminders.

### Channels of administrative review and Committee findings
- Applicant sought SRP Administration Committee review; Committee decision dated July 10, 2015; follow-up letter dated October 30, 2015.
- Committee findings and representations:
  - Copies of April 11, 2007 and May 9, 2007 emails were obtained from a TGS staff member who provided the log from the Fund’s archiving system in 2012.
  - TGS confirmed the emails forwarded to Applicant are the same email notifications sent in 2007.
  - TGS could not locate 60th-day and 90th-day reminders in the archiving system; these may have been deleted prior to archiving.
  - Characters appearing below the sender line represent the email exchange server.
  - TGS confirmed these emails are sent to imf.org email addresses as set in the email server and therefore cannot be sent directly to Applicant at this time.
- Committee’s substantive decision (July 10, 2015):
  - Denied retroactive contribution request because "Plan provisions only allow enrollment during the 90-day period following an appointment or change in appointment."
  - Noted exceptions in the past were limited to cases where the Fund failed to notify or remind staff/Board members.
  - Found evidence showed Applicant had been "properly notified and reminded."
- Committee’s review decision (October 30, 2015):
  - Identified twelve cases over the preceding twenty years where late enrollment was permitted because the Fund had failed to notify or remind; found no such administrative error in Applicant’s case.
  - Rejected analogy to SRP Section 5.1 (restoration of prior service) and SRP Section 3.2 (one-time buyback for contractual service).
  - Concluded permitting Applicant’s request would require an amendment to the Plan and be unfair to others in similar situations.
- Exhaustion of administrative remedies: Under Rule X, para. 1(b) of the SRP Administration Committee’s Rules of Procedure, Committee review channels were exhausted when the Committee notified Applicant of the results.

### Applicant’s enrollment, retirement, and requested relief
- Applicant’s second appointment: November 23, 2010 — he elected participation by email stating: "I would like to enroll in the Retirement Plan. The effective date of participation would be November 23, 2010." (Email to HRD, SRP Enrollment, cc: [Secretary of the SRP Administration Committee], December 14, 2010.)
- Applicant participated in the Plan and contributed until retirement on July 1, 2015.
- Applicant began receiving pension payments on July 31, 2015.
- Relief sought: permission to contribute retroactively to the SRP from April 2007 (initial eligibility).

### Parties’ principal contentions (summary)
- Applicant:
  - Does not recall receiving email notifications in 2007 and disputes authenticity of produced emails.
  - Contends the Plan does not expressly prohibit retroactive participation in his circumstances and seeks to exercise a right held since April 2007.
  - Points to other cases of retroactive payments and to SRP Sections 3.2 and 5.1 as analogous.
- Respondent:
  - Asserts the three-month time limit under SRP Section 2.2(c) was correctly applied and there is no authority to waive it absent administrative error.
  - States the Fund fulfilled notification obligations via initial email and three follow-ups and the appointment checklist.
  - Notes retroactive contributions have been permitted only where the Fund failed to notify; contends Applicant’s case differs because evidence shows proper notification.

### Relevant Plan provisions cited in the record
- SRP Section 2.2(c) — Executive Directors may elect to participate by written notice within three months after first satisfying subsection (c).
- SRP Section 7.2 — describes the SRP Administration Committee’s composition, responsibilities, exclusive right to interpret the Plan, authority to make rules, and finality of Committee decisions subject to appeal to the Administrative Tribunal.
- SRP Section 3.2 and SRP Section 5.1 — invoked by Applicant as analogous provisions (respectively concerning buy-back for former contractual employees and restoration of service).
- Rule to Permit Acts to Be Performed Beyond Time Limit Under Certain Circumstances (1998) — permits the Committee, in its sole discretion, to permit acts beyond a prescribed time limit where failure to comply resulted from the Employer’s or Committee’s failure to give an obligated notice and the participant’s interest was thereby adversely affected.

### Standard of review applied by the Tribunal
- Tribunal reviews whether the SRP Administration Committee correctly interpreted Plan provisions and soundly applied them to the facts.
- Authority: SRP Section 7.2(b) vests individual decision authority in the Committee, subject to appeal to the Tribunal.
- The Tribunal may rescind a Committee decision if it concludes the decision was "in error."

### Tribunal analysis and findings on notice and administrative error
- Facts established by the record:
  - Applicant does not deny receipt of the Appointment Checklist dated April 9, 2007, which informed Executive Directors of the three-month election period.
  - Record contains the April 11, 2007 initial enrollment email and May 9, 2007 30th-day reminder (produced electronically after Tribunal order) and an Enrollment Email Notification Log listing June 8, 2007 and July 1, 2007 reminders with "Read" and "Received" annotations.
  - Applicant became aware of enrollment option no later than his reappointment in 2010 but did not raise the 2007 notification issue then.
  - Applicant first inquired informally about retroactive participation in 2012 and submitted a formal request in 2015.
- Tribunal conclusions on burden of proof and administrative error:
  - Applicant has not met the burden of showing the Fund failed to notify him in 2007 of the option to elect participation.
  - Applicant has not demonstrated administrative error by the Fund that would justify the Committee exercising discretion under the 1998 Rule to waive the three-month deadline.

### Consideration of SRP Section 3.2 and SRP Section 5.1
- Tribunal findings:
  - SRP Section 3.2 (buy back for former contractual employees) and SRP Section 5.1 (restoration of service) apply to specific categories and circumstances and are not analogous to Applicant’s situation.
  - The dispute is governed solely by SRP Section 2.2(c); neither SRP Section 3.2 nor SRP Section 5.1 provides grounds to conclude the Committee erred.

### Conclusions and disposition
- The Tribunal concluded:
  - The SRP Administration Committee correctly interpreted SRP Section 2.2(c) and soundly applied it to the facts.
  - Applicant did not establish administrative error by the Fund in notifying him of the option to elect participation pursuant to SRP Section 2.2(c).
  - Other Plan provisions cited by Applicant do not support his claim.
- Decision:
  - The Application of Mr. Nogueira Batista is denied.
  - Decision issued unanimously by the Administrative Tribunal of the International Monetary Fund, Washington, D.C., November 1, 2016.

*Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2016-4 (Mr. P. Nogueira Batista, Jr. v. International Monetary Fund).*

### INTRODUCTION ...........................................................................................................

### JUDGMENT No. 2016-4 — INTRODUCTION

### Introduction
- The Administrative Tribunal of the International Monetary Fund met on November 1, 2016, to adjudge an Application by Mr. Paulo Nogueira Batista, Jr. (Applicant) against the International Monetary Fund (Respondent).
- The Tribunal was composed, for this case, of Judge Catherine M. O’Regan, President, and Judges Edith Brown Weiss and Francisco Orrego Vicuña.
- Applicant is a former member of the IMF Executive Board and a retired participant in the Fund’s Staff Retirement Plan (SRP). Applicant represented himself; Respondent was represented by Ms. Diana Benoit, Senior Counsel, and Ms. Pheabe Morris, Counsel, IMF Legal Department.
- Applicant contests the SRP Administration Committee’s denial of his request to contribute retroactively to the SRP from the date he first became eligible to elect participation in 2007. Applicant did not enroll until his second eligibility at the time of his second appointment to the Executive Board in 2010.
- The Committee denied the request based on SRP Section 2.2(c), which permits enrollment only within the three-month period following an appointment.
- Applicant’s asserted grounds: he does not recall receiving notice of the opportunity to elect participation in 2007; Fund practices in similar cases and Plan provisions for analogous situations support granting his request.
- Respondent’s position: the three-month time limit in SRP Section 2.2(c) was correctly applied; the Fund fulfilled its responsibility to notify Applicant in 2007; Applicant did not elect participation then; Fund practices and Plan provisions cited by Applicant do not support retroactive participation.

### Procedural history
- Key filings and dates:
  - Application filed January 25, 2016; supplemented February 26 and March 4, 2016.
  - Application transmitted to Respondent on March 4, 2016.
  - Registrar circulated a notice summarizing issues on March 15, 2016.
  - Respondent’s Answer filed April 18, 2016.
  - Applicant’s Reply submitted May 24, 2016.
  - Fund’s Rejoinder filed June 30, 2016.
  - Applicant filed an Additional Pleading July 28, 2016; Respondent filed a Comment August 4, 2016.
- Applicant made two preliminary requests:
  1. Tribunal to arrange an independent technical examination to verify authenticity of documents the Fund provided (notably an initial enrollment email of April 11, 2007 and a 30th-day reminder email of May 9, 2007).
  2. That the Fund send him electronically two documents previously provided in hard copy.
- Tribunal decisions on preliminary requests:
  - The Fund was ordered to forward the two emails electronically to Applicant.
  - Decision on the independent technical examination was deferred until after electronic production.
  - The Fund transmitted the two emails electronically on September 19, 2016; Applicant filed observations September 30, 2016; Fund filed a responsive Comment October 6, 2016.
  - Tribunal denied Applicant’s request for an independent technical examination, concluding such an examination would not be dispositive of the issues in the case.

### Oral proceedings
- Neither party requested oral proceedings.
- The Tribunal, noting the written record and absence of a request, decided oral proceedings would not be useful.

### Factual background
- Summary of contested facts:
  - Applicant’s first appointment as member of the IMF Executive Board: April 9, 2007.
  - Under SRP Section 2.2(c), Executive Directors are eligible to elect SRP participation by giving written notice to the SRP Administration Committee within three months of appointment.
  - Applicant did not elect participation following his April 9, 2007 appointment.
  - Central dispute: the nature and sufficiency of notice the Fund provided to Applicant within the three-month period after April 9, 2007.

- Documentation produced by the Fund (as represented by the Fund in the record):
  - Appointment Checklist, April 9, 2007, addressed to Applicant and including his Fund ID number, stating:
    - "Directors desiring to participate must so elect within three months of assuming duties. You will receive an e-mail regarding retirement insurance explaining your benefits under the SRP should you decide to participate. You will be asked to respond to the e-mail whether or not you wish to participate."
  - Initial Enrollment Notification Email, April 11, 2007, from HRD, SRP Enrollment, addressed "Dear New IMF Board or Staff Member", stating in part:
    - "Our records indicate that you are eligible to participate in the IMF Staff Retirement Plan (SRP). . . . If you decide to participate, you must enroll in the SRP within 90 calendar days from your Entry on Duty (EOD) date. (Please note that the SRP Election Form has been eliminated). You must respond directly to HRD, SRP Enrollment by email . . . ."
    - The notification attached a personalized projection of Plan benefits and advised:
      - "If we do not receive your election to enroll in the SRP by the 90th calendar day, you will not be allowed to enroll in the SRP. However, at the end of your current appointment, if you are offered a new fixed-term appointment that is at least two years or more (for a member of the Board of Executive Directors, if you are re-elected) you will be eligible to enroll at that time; or if you are offered a 'regular appointment', then the participation in the SRP is automatic and mandatory."
    - The email header in the record included the string "[/O=IMF/OU=WASHINGTON/CN=RECIPIENTS/CN=SRPENROLLMENT]".
  - 30th-day Reminder Email, May 9, 2007 — text identical to the initial enrollment email, subject line "30th Day Reminder for the SRP Enrollment".
  - "Enrollment Email Notification Log" — a table listing four email notifications by date and time sent, subject line, and Applicant’s name as Recipient, including the 60th-day reminder email, June 8, 2007, and 90th-day reminder email, July 1, 2007, with terms "Read" and "Received" in relation to the latter reminder.

### Channels of administrative review (summary of record)
- Applicant sought review from the SRP Administration Committee; in that review Applicant posed specific questions about the origin and authenticity of archived emails and characters appearing in the email header.
- Committee’s responses in its decision of July 10, 2015 and follow-up letter of October 30, 2015 included:
  - Copies of the April 11, 2007 initial enrollment email and the May 9, 2007 30th-day reminder email were obtained from a TGS staff member who provided the log from the Fund’s archiving system in 2012.
  - TGS confirmed that the emails forwarded to Applicant are the same email notifications that were sent to Applicant in 2007.
  - TGS was unable to locate the 60th-day and 90th-day reminders in the archiving system; these may have been deleted prior to archiving.
  - The characters appearing below the sender line represent the email exchange server.
  - TGS confirmed that these emails are sent to imf.org email addresses as set in the email server and therefore cannot be sent directly to Applicant at this time.

### Summary of parties’ principal contentions
- Applicant’s principal contentions:
  - He does not recall receiving notice of the opportunity to elect SRP participation in 2007.
  - The Committee’s replies concerning the authenticity and provenance of the email notifications were "unclear and unconvincing."
  - He requests that the Tribunal arrange an independent technical examination to verify authenticity of documents the Committee relied upon.
  - He invokes Fund practices in similar cases and Plan provisions governing "analogous" situations as support for retroactive participation.

- Respondent’s principal contentions:
  - The three-month time limit under SRP Section 2.2(c) was correctly applied and Applicant has not established a basis for an exception.
  - The Fund fulfilled its responsibility to notify Applicant of eligibility to enroll in 2007 and Applicant did not elect participation then.
  - There are sound reasons for the time limit.
  - The Fund’s practices in other cases and Plan provisions cited by Applicant do not warrant granting retroactive participation.
  - The Fund opposes an independent technical examination absent any predicate for believing documents were tampered with, but states it will cooperate if the Tribunal requests technical examination or additional information.

### Relevant Plan provisions (as cited in the record)
- SRP Section 2.2(c) — governs Plan participation by Executive Directors; under this provision an Executive Director is eligible to elect to participate in the Plan by giving written notice within three months of appointment.
- Other Plan provisions and administrative rules cited by the parties and Committee in the record include references to SRP Sections 3.2 and 5.1 and the SRP Administration Committee (SRP Section 7.2), and a Rule to Permit Acts to Be Performed Beyond Time Limit Under Certain Circumstances (1998), which were considered in the proceeding. (The record indicates these provisions and rules are material to the dispute over retroactive participation and discretionary waivers of time limits.)

### Consideration of the issues (overview reflected in the record)
- The Tribunal framed principal questions:
  1. What standard of review governs Applicant’s challenge to the Committee’s decision?
  2. Did the Committee correctly interpret SRP Section 2.2(c) and soundly apply it to the facts?
  3. Whether Applicant established administrative error by the Fund that would support waiving the three-month time limit (including whether the Fund failed to give notice within three months of the April 9, 2007 appointment).
  4. Whether SRP Section 3.2 or SRP Section 5.1 provide grounds for concluding the Committee erred in denying retroactive participation.
- The Tribunal concluded an independent technical examination of documents would not be necessary to dispose of the case.

### Conclusions and disposition (as reflected in the record)
- The Tribunal denied Applicant’s request that it arrange an independent technical examination to verify the authenticity of the two email notifications, concluding such an examination would not be dispositive of the issues.
- Oral proceedings were not held.
- The record sets out contested factual findings and legal questions to be decided by the Tribunal concerning (i) application of the three-month enrollment rule in SRP Section 2.2(c); (ii) the sufficiency of notice provided to Applicant in 2007; and (iii) whether any Plan provisions or administrative practice warranted retroactive participation.

*Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2016-4 (Mr. P. Nogueira Batista, Jr. v. International Monetary Fund).*

### 26. Applicant asserts that he does not recall receiving the initial enrollment email or any of

### j2016-4 - 26. Applicant asserts that he does not recall receiving the initial enrollment email or any of

### Applicant’s assertions and enrollment notifications
- Applicant asserts he does not recall receiving the initial enrollment email or the reminder emails.
- Applicant disputes the authenticity of two email notifications produced by the Fund: the initial enrollment notification email and the 30th-day reminder email.
- The Fund initially produced hard-copy versions of those two notifications and, following the Tribunal’s decision of September 6, 2016, produced them electronically.

### Applicant’s second appointment to the Executive Board and Plan participation
- On November 23, 2010, Applicant was appointed to a second term as a member of the IMF Executive Board.
- On the occasion of his second appointment Applicant elected participation in the Plan by email to the “HRD, SRP Enrollment” mailbox stating: “I would like to enroll in the Retirement Plan. The effective date of participation would be November 23, 2010.” (Email from Applicant to HRD, SRP Enrollment, cc: [Secretary of the SRP Administration Committee], December 14, 2010.)
- Applicant continued to participate in the Plan and to make contributions until his retirement on July 1, 2015.
- Applicant began receiving pension payments on July 31, 2015.

### Applicant’s request for retroactive Plan participation and Committee response
- In 2012 Applicant inquired informally about contributing retroactively to the SRP and was provided with a copy of the Enrollment Email Notification Log. (Letter from Secretary of the SRP Administration Committee to Applicant, October 30, 2015, p. 2.)
- On June 8, 2015, Applicant formally requested the Committee to permit retroactive contributions to the Plan from his initial appointment date in 2007. (Memorandum from Applicant to Secretary of the SRP Administrative Committee, June 8, 2015.)
  - In support, Applicant asserted:
    - he was “not asking for any privilege,” as he would be exercising a right he had held since April 2007;
    - he did “not recall having received any email notifications about this matter when [he] joined the Fund”;
    - from colleagues he had learned of “a number of similar cases, involving different types of retroactive payments.”
  - Applicant requested a “copy of all the enrollment email notifications that were sent to [him] at the time” of his initial appointment and asked the Committee to review past exceptions for late registration to identify comparable cases.
- On July 10, 2015, the Committee denied Applicant’s request because “Plan provisions only allow enrollment during the 90-day period following an appointment or change in appointment.” (Letter from Secretary of the SRP Administration Committee to Applicant, July 10, 2015.)
  - The decision stated similar requests had been denied in the past, “with the exception of very few cases, where it was established that the Fund had failed to notify or remind staff/Board members of their eligibility to enroll.”
  - In Applicant’s case the Committee concluded the evidence showed he had been “properly notified and reminded” and therefore there was no basis to make an exception to the three-month time limit.

- The Committee attached to its July 10, 2015 decision the following documents:
  - Appointment Checklist, April 9, 2007;
  - Initial enrollment email notification, April 11, 2007;
  - 30th-day reminder email notification, May 9, 2007.
- The decision noted the TGS log indicated Applicant read the final reminder for SRP enrollment and emphasized that retroactive contributions have been permitted only in cases of “administrative error on the institution’s part” or where particular Plan provisions governed the circumstances.

### Channels of administrative review and subsequent determinations
- On August 28, 2015, Applicant filed a request for review by the Committee of its July 10, 2015 decision. (Memorandum from Applicant to Secretary of the SRP Administration Committee, August 28, 2015.)
  - Applicant reiterated his June 8, 2015 arguments and asked the Committee to “examine all cases, since the beginning of the SRP, to check whether there are precedents for what I am requesting.”
- On October 30, 2015, the Committee denied the request for review. (Letter from Secretary of the SRP Administration Committee to Applicant, October 30, 2015.)
  - The Committee identified twelve cases over the preceding twenty years in which participants were permitted to enroll after the 90-day time limit of SRP Section 2.2(c); in each of those cases the exception was made because the Fund had failed to notify or remind staff/Executive Board members of their eligibility.
  - In Applicant’s case the Committee found “no such administrative error.”
  - The Committee explained that when Applicant separated from the Fund in June 2015, copies of the requested emails were not in the Secretary’s files and an extract from the TGS log indicating the date and time the emails had been sent was provided; that log had been provided to HRD in 2012 when Applicant first inquired about retroactive contributions.
  - The Committee rejected Applicant’s arguments that SRP provisions for restoration of prior service (SRP Section 5.1) or the one-time buyback for contractual service (SRP Section 3.2) were analogous to his request.
  - The Committee concluded Applicant was “properly notified and reminded in 2007 of [his] option to enroll in the Plan,” and that granting his request would require an amendment to the Plan and be unfair to other participants denied under similar situations.
- Under Rule X, para. 1(b) of the SRP Administration Committee’s Rules of Procedure, the channels of review provided by that Committee were exhausted for purposes of filing with the Administrative Tribunal when the Committee notified the requestor of the results of its review.
- On January 25, 2016, Applicant filed his Application with the Administrative Tribunal.

### Parties’ principal contentions
- Applicant’s principal contentions:
  - The Plan does not expressly prohibit retroactive participation in his circumstances.
  - He seeks to exercise a right he already had since April 2007 and is “not asking for any privilege.”
  - He “do[es] not recall having received any email notifications” when he joined in 2007 and the Fund has not “establish[ed] clearly” that he was appropriately notified.
  - Other staff or Board members who were not notified have been authorized to participate retroactively.
  - Former contractual employees were allowed a one-time opportunity to contribute retroactively; the same fairness principle should apply.
  - Restoration of participation after leaving and rejoining the Fund (Article 5.1) is analogous to his requested relief.
  - Relief requested: permission to contribute retroactively to the SRP from April 2007 when he first became eligible.

- Respondent’s principal contentions:
  - Applicant has not shown the Committee erred in denying a waiver of the three-month enrollment time limit in SRP Section 2.2(c).
  - Timing limits prevent “adverse selection”; allowing retroactive contributions years after the deadline would be an unjustified exception.
  - No authority in the Plan text exists to waive the three-month time limit under SRP Section 2.2(c).
  - The Fund satisfied any obligation to notify through an initial enrollment email and three follow-up emails at 30-day intervals, and via an appointment checklist at initial entry on duty in 2007.
  - Retroactive contributions after the three-month deadline have been permitted only where the Fund failed to notify or remind the participant; Applicant’s case differs because evidence shows the Fund satisfied notification obligations.
  - Applicant’s case is not analogous to retroactive participation under SRP Section 5.1 (restoration of service) or SRP Section 3.2 (buy back for former contractual employees).

### Relevant provisions of the Fund’s internal law cited
- SRP Section 2.2(c):
  - Provides Executive Directors and certain other categories may elect to participate by written notice to the Administration Committee within three months after first satisfying subsection (c).
- SRP Section 7.2 (Administration Committee):
  - Describes composition, responsibilities, exclusive right to interpret the Plan, authority to make rules, and finality of Committee decisions subject to appeal to the Administrative Tribunal.
- Rule to Permit Acts to Be Performed Beyond Time Limit Under Certain Circumstances (1998):
  - Permits the Committee, in its sole discretion, to permit acts beyond a prescribed time limit where failure to comply resulted from the Employer’s or Committee’s failure to give an obligated notice and the participant’s interest was thereby adversely affected.

*Source: Application filed with the Administrative Tribunal (Applicant filed January 25, 2016); SRP Administration Committee decisions of July 10, 2015 and October 30, 2015; SRP provisions cited in the Application.*

### 47. The Application presents the following issue for consideration: Did the SRP

### j2016-4 - 47. The Application presents the following issue for consideration: Did the SRP

### Standard of review
- The Tribunal decides whether the SRP Administration Committee has correctly interpreted the provisions of the Plan and soundly applied them to the facts of the case. (See Mr. J. Prader, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2015-1 (March 15, 2016), paras. 52-54; Ms. “J”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2003-1 (September 30, 2003), para. 128.)
- If the Tribunal concludes the Committee’s decision was “in error,” it may rescind the decision. Examples cited include rescinding denial of revocation of currency election under SRP Section 16.3 and giving effect to orders under SRP Section 11.3.
- Rationale:
  - SRP Section 7.2(b) vests authority to take individual decisions under the Plan exclusively in the SRP Administration Committee, subject to appeal to the Tribunal after reconsideration by the Committee.
  - The process of construing Plan terms and applying them to facts is more akin to a judicial act than managerial authority (Prader, para. 53, quoting Ms. “J”, paras. 112-113).

### Application of SRP Section 2.2(c) to Applicant’s request
- Relevant Plan text:
  - SRP Section 2.2(c): an “Executive Director . . . may, within three months after he shall first satisfy the requirements of this subsection (c), elect to become a participant by filing written notice with the Administration Committee.”
- Facts:
  - Applicant did not elect Plan participation in 2007 when first eligible.
  - Applicant became a participant only upon a second period of eligibility in 2010 and stated the effective participation date would be November 23, 2010.
  - Record contains no indication that Applicant raised the 2007 notification issue or sought retroactive participation in 2010.
- Disputed evidence of notice in 2007 produced by the Fund:
  - Appointment Checklist, April 9, 2007.
  - Initial enrollment notification email, April 11, 2007.
  - 30th-day reminder email, May 9, 2007.
  - “Enrollment Email Notification Log,” listing 60th-day reminder email, June 8, 2007, and 90th-day reminder email, July 1, 2007, with terms “Read” and “Received” in relation to the latter reminders.
- Applicant’s contentions:
  - “do[es] not recall” receiving email notifications in 2007.
  - Disputes authenticity of two of the four emails that the Committee later produced.
  - Notes that two of the four emails (60th-day and 90th-day reminders) were not retrieved and questions sufficiency of a “read receipt” log entry.

### Tribunal’s assessment of administrative error and burden of proof
- Issues posed for consideration:
  - (i) Has Applicant established administrative error by the Fund (failure to notify within three months of initial 2007 appointment) to justify waiver of the three-month time limit under SRP Section 2.2(c) and the Committee’s discretionary Rule to Permit Acts to Be Performed Beyond Time Limit Under Certain Circumstances (1998)?
  - (ii) Do SRP Section 3.2 or SRP Section 5.1 provide grounds to conclude Committee erred in denying retroactive participation?
- Tribunal findings on notice/administrative error:
  - Applicant does not deny receipt of the Appointment Checklist bearing his name and date of appointment, which states Executive Directors are eligible to join the Plan and must elect within three months.
  - Applicant has not identified any basis to challenge the authenticity of the email documentation beyond his lack of recall and initial Committee statement that emails were not retrievable (later identifying two emails retrieved from TGS staff archival log).
  - Applicant became aware of the option to enroll at the latest when reappointed in 2010 and did not complain at that time.
  - Applicant first made an informal inquiry about retroactive participation in 2012 and launched a formal request in 2015 when about to retire.
- Tribunal conclusions on administrative error:
  - Applicant has not met the burden of showing the Fund failed to notify him in 2007 of the option to elect participation.
  - Applicant has not shown administrative error that would justify the Committee’s exercise of discretion to waive the three-month deadline under SRP Section 2.2(c) pursuant to the Committee’s 1998 Rule.

### Consideration of SRP Section 3.2 and SRP Section 5.1
- Applicant’s position:
  - Invokes SRP Section 3.2 and SRP Section 5.1 as provisions “analogous” to his case in support of retroactive participation.
- Respondent’s position:
  - SRP Section 3.2 relates to “buy back” of service for former contractual employees following Executive Board decisions in 2002.
  - SRP Section 5.1 concerns restoration of service following a break in service.
  - These provisions apply to specific categories and circumstances not analogous to Applicant’s case.
- Tribunal finding:
  - The issues are governed solely by SRP Section 2.2(c).
  - Applicant’s case does not fall within SRP Section 3.2 or SRP Section 5.1.
  - Neither provision provides grounds for concluding the Committee erred in denying retroactive participation.

### Conclusions and decision
- The Tribunal concludes:
  - The SRP Administration Committee correctly interpreted SRP Section 2.2(c) and soundly applied it to the facts of Applicant’s case.
  - Applicant has not established administrative error by the Fund in notifying him of the option to elect participation pursuant to SRP Section 2.2(c).
  - Other Plan provisions cited by Applicant do not provide ground for his claim.
  - The Committee’s decision denying Applicant’s request for retroactive participation in the Plan was not in error.
- Decision:
  - The Application of Mr. Nogueira Batista is denied.
  - Decision issued unanimously by the Administrative Tribunal of the International Monetary Fund, Washington, D.C., November 1, 2016.

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_Source: https://www.imf.org/-/media/files/imfat/j2016-4.pdf_