## ADMINISTRATIVE TRIBUNAL OF THE INTERNATIONAL MONETARY FUND — JUDGMENT No. 2022-3

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### Composition, Representation, and Subject Matter
- Tribunal composition pursuant to Article VII, Section 4 of the Tribunal’s Statute:
  - Judge Nassib G. Ziadé, President
  - Judge Deborah Thomas-Felix
  - Judge Andrew K.C. Nyirenda
- Representation:
  - Applicant: Messrs. Alex Haines and Jeremy Scott-Joynt, Outer Temple Chambers
  - Respondent: Ms. Pheabe Morris, Senior Counsel, and Ms. Tuuli Mooney-Schindler, Counsel, Administrative Law Unit, IMF Legal Department
- Subject of the Application:
  - Denial of Applicant’s request to be reclassified from a Fungible Macroeconomist (“FM”) to a Financial Sector Expert (“FSE”)
  - Applicant sought, among other remedies, “specific performance in the form of the reclassification he has sought.”

### Factual Background and Procedural History
- Employment and classification:
  - Applicant joined the Fund in 2000.
  - Applicant classified as an FM for purposes of the Fund’s Mobility Support Program, entailing a requirement to change departments within the Fund every seven years.
- Reclassification requests:
  - Applicant states he requested reclassification from FM to FSE on three occasions:
    - once in 2019;
    - once in 2020;
    - and on January 12, 2021.
  - Of those requests, only the request of January 12, 2021, and a denial dated July 1, 2021, are fully documented.
- Administrative Review and subsequent steps:
  - July 15, 2021: Applicant requested Administrative Review of the July 1, 2021 decision.
  - Administrative Review decision dated March 8, 2022:
    - Rejected Applicant’s request for Administrative Review as untimely on the basis that Applicant had twice previously (in 2019 and 2020) requested the same reclassification.
    - Stated: “The time limits for requesting an administrative review of a decision are not extended by repeating a request or requesting reconsideration or clarification.”
    - Nonetheless examined the merits and found the denial reasonable and based on “established parameters.”
    - Informed Applicant of right to file a Grievance with the Fund’s Grievance Committee and that the Fund may contest the Grievance Committee’s jurisdiction on grounds of timeliness.
  - Applicant did not file a Grievance and instead filed an Application directly with the Tribunal.
- Procedure before the Tribunal:
  - May 5, 2022: Applicant filed an Application with the Administrative Tribunal.
  - May 16, 2022: Application supplemented pursuant to Rule VII, para. 6, and transmitted to Respondent.
  - May 20, 2022: Registrar circulated within the Fund a notice summarizing the issues raised in the Application pursuant to Rule IV, paragraph (f).
  - June 15, 2022: Respondent filed a Motion for Summary Dismissal pursuant to Rule XII, para. 2.
    - Motion transmitted to Applicant on June 16, 2022.
  - July 14, 2022: Applicant filed an Objection to the Motion pursuant to Rule XII, para. 5.
  - Procedural limitation: A Motion for Summary Dismissal suspends the period for answering the Application until the Tribunal decides the Motion; the Tribunal’s deliberation on the Motion is limited to admissibility.

### Applicant’s Request for Anonymity
- Applicant requested anonymity pursuant to Rule XXII, arguing privacy concerns because the merits relate to Applicant’s “purported absence of ... strong performance.”
- Respondent opposed, asserting Applicant had not shown “good cause” as required by Rule XXII.
- Rule XXII standard: the Tribunal shall grant a request for anonymity “where good cause has been shown for protecting the privacy of an individual.”
- Tribunal finding:
  - Sufficient justification to grant Applicant’s request for anonymity, as the case concerns an applicant’s professional competencies being at issue.
  - Request for anonymity was granted.

### Parties’ Principal Contentions on Admissibility
- Respondent’s principal contentions:
  1. Applicant is challenging an individual decision and is therefore required to exhaust internal remedies before the Grievance Committee, even if also challenging a purported regulatory decision.
  2. The reclassification practice Applicant challenges is not a regulation and the Administrative Review response did not constitute a regulatory decision.
  3. The duration of a practice has no bearing on whether the practice becomes a regulatory decision.
  4. The existence of a gap in the Fund’s written regulations is not grounds for direct review by the Tribunal.
  5. Assuming Applicant is only challenging a regulatory decision, the Application is untimely because Applicant knew of the reclassification practice as early as 2019 and as late as 2020 and failed to challenge it in a timely manner.
  6. The request for Administrative Review was untimely because the individual decision denying reclassification was taken as early as 2019 and no later than 2020.
- Applicant’s principal contentions:
  1. Tribunal has jurisdiction ratione materiæ because “the decision challenged herein is in truth a regulatory one.”
  2. Tribunal has jurisdiction ratione temporis because the Application was filed within three months of the Administrative Review decision, which defined reclassification criteria for the first time and constituted both a regulatory and an individual decision.
  3. No formal reclassification decisions were made in 2019 or 2020 because there were no written determinations nor explanations of rationale for the decisions.

### Statutory Framework and Procedural Requirements
- Statutory provisions cited:
  - Article II, Section 1(a): Tribunal competent to hear any application by a staff member challenging the legality of an administrative act adversely affecting him or her.
  - Article II, Section 2(a): “administrative act” defined as “any individual or regulatory decision taken in the administration of the staff of the Fund.”
  - Article II, Section 2(b): “Regulatory decision” defined as “any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund.”
- Procedural distinctions:
  - Challenge to an individual decision:
    - Application must be filed within three months after all available channels of administrative review have been exhausted, or within three months after notification of the decision if no channels exist (see Article V and Article VI, Section 1).
    - Commentary emphasizes exhaustion requirement and the Grievance Committee’s role in producing a detailed record.
  - Challenge solely to a regulatory decision:
    - Application may be filed directly with the Tribunal within three months after the announcement or effective date of the decision, whichever is later (Article VI, Section 2).
    - Commentary justifies direct review to expedite resolution before implementation or reliance on the contested regulation.
  - Challenge to both an individual and a regulatory decision:
    - A regulatory decision may be challenged at any time in the context of an application challenging an individual decision taken pursuant to that regulation, but the application must be “admissible” (Article VI, Section 2).
    - Commentary clarifies that pursuit of administrative remedies on interpretative/application issues suspends the time period for seeking review of the underlying regulatory decision.

### Tribunal’s Consideration and Conclusions on Admissibility
- The Tribunal stated it did not need to resolve whether the contested action is solely an individual decision or also a regulatory decision in order to dispose of the Motion for Summary Dismissal.
- Key conclusion on admissibility:
  - Applicant’s case is not admissible for review because, even if challenging a regulatory decision, he does so in the context of a challenge to an individual decision and such an individual decision must first be pursued at the Grievance Committee.
  - Applicant confirmed he is challenging both the reclassification (an individual decision) and the criteria used to deny reclassification (which he contends constituted a regulatory decision), meaning the Grievance Committee is the proper forum to hear the case first and to dispose of issues within its jurisdiction.
  - Tribunal has not ruled on whether the criteria used to deny Applicant’s reclassification request constituted a regulatory decision.

### Ruling, Disposition, and Decision Record
- Ruling:
  - Motion for Summary Dismissal is granted to the extent it seeks dismissal of the Application for failure to exhaust administrative remedies.
  - Application of “UU” is dismissed.
- Decision record:
  - The Administrative Tribunal of the International Monetary Fund unanimously decides:
    - the Motion for Summary Dismissal is granted; and
    - the Application of “UU” is dismissed.
  - Signatories:
    - Nassib G. Ziadé, President
    - Deborah Thomas-Felix, Judge
    - Andrew K.C. Nyirenda, Judge
    - Celia Goldman, Registrar
  - Location and date: Washington, D.C., December 22, 2022

*Administrative Tribunal of the International Monetary Fund — Judgment No. 2022-3, December 22, 2022.*

### Section 1

### ADMINISTRATIVE TRIBUNAL OF THE INTERNATIONAL MONETARY FUND — JUDGMENT No. 2022-3  
“UU”, Applicant v. International Monetary Fund, Respondent (Admissibility of the Application)

### Introduction
- The Tribunal was composed, pursuant to Article VII, Section 4 of the Tribunal’s Statute, of Judge Nassib G. Ziadé, President, and Judges Deborah Thomas-Felix and Andrew K.C. Nyirenda.
- The Tribunal decided the Motion for Summary Dismissal of the Application brought by “UU”, a staff member of the Fund.
- Representation:
  - Applicant: Messrs. Alex Haines and Jeremy Scott-Joynt, Outer Temple Chambers.
  - Respondent: Ms. Pheabe Morris, Senior Counsel, and Ms. Tuuli Mooney-Schindler, Counsel, Administrative Law Unit, IMF Legal Department.
- Subject of the Application: denial of Applicant’s request to be reclassified from a Fungible Macroeconomist (“FM”) to a Financial Sector Expert (“FSE”).
- Applicant sought, among other remedies, “specific performance in the form of the reclassification he has sought.”
- Respondent filed a Motion for Summary Dismissal on grounds of failure to exhaust administrative remedies and untimeliness of challenge.

### Factual background
- Applicant joined the Fund in 2000.
- Applicant is classified as an FM for purposes of the Fund’s Mobility Support Program, entailing a requirement to change departments within the Fund every seven years.
- Applicant states he requested reclassification from FM to FSE on three occasions:
  - once in 2019;
  - once in 2020;
  - and on January 12, 2021.
- Of those requests, only the request of January 12, 2021, and a denial dated July 1, 2021, are fully documented.

### Channels of administrative review
- On July 15, 2021, Applicant requested Administrative Review of the July 1, 2021 decision.
- Administrative Review decision dated March 8, 2022:
  - Rejected Applicant’s request for Administrative Review as untimely on the basis that Applicant had twice previously (in 2019 and 2020) requested the same reclassification.
  - Stated: “The time limits for requesting an administrative review of a decision are not extended by repeating a request or requesting reconsideration or clarification.”
  - Nonetheless examined the merits and found the denial reasonable and based on “established parameters.”
- Applicant was informed of his right to file a Grievance with the Fund’s Grievance Committee and that the Fund may contest the Grievance Committee’s jurisdiction on grounds of timeliness.
- Applicant did not file a Grievance and instead filed an Application directly with the Tribunal.

### Procedure before the Tribunal
- May 5, 2022: Applicant filed an Application with the Administrative Tribunal.
- May 16, 2022: Application supplemented pursuant to Rule VII, para. 6, and transmitted to Respondent.
- May 20, 2022: Registrar circulated within the Fund a notice summarizing the issues raised in the Application pursuant to Rule IV, paragraph (f).
- June 15, 2022: Respondent filed a Motion for Summary Dismissal pursuant to Rule XII, para. 2.
  - The Motion was transmitted to Applicant on June 16, 2022.
- July 14, 2022: Applicant filed an Objection to the Motion pursuant to Rule XII, para. 5.
- Procedural limitation: A Motion for Summary Dismissal suspends the period for answering the Application until the Tribunal decides the Motion; the Tribunal’s deliberation on the Motion is limited to admissibility.

### Applicant’s request for anonymity
- Applicant requested anonymity pursuant to Rule XXII, arguing privacy concerns because the merits relate to Applicant’s “purported absence of ... strong performance.”
- Respondent opposed, asserting Applicant had not shown “good cause” as required by Rule XXII.
- Rule XXII standard: the Tribunal shall grant a request for anonymity “where good cause has been shown for protecting the privacy of an individual.”
- The Tribunal found sufficient justification to grant Applicant’s request for anonymity, as the case concerns an applicant’s professional competencies being at issue.
- The request for anonymity was granted.

### Summary of parties’ principal contentions relating to the Motion for Summary Dismissal

- Respondent’s principal contentions on admissibility:
  1. Applicant is challenging an individual decision and is therefore required to exhaust internal remedies before the Grievance Committee, even if also challenging a purported regulatory decision.
  2. The reclassification practice Applicant challenges is not a regulation and the Administrative Review response did not constitute a regulatory decision.
  3. The duration of a practice has no bearing on whether the practice becomes a regulatory decision.
  4. The existence of a gap in the Fund’s written regulations is not grounds for direct review by the Tribunal.
  5. Assuming Applicant is only challenging a regulatory decision, the Application is untimely because Applicant knew of the reclassification practice as early as 2019 and as late as 2020 and failed to challenge it in a timely manner.
  6. The request for Administrative Review was untimely because the individual decision denying reclassification was taken as early as 2019 and no later than 2020.

- Applicant’s principal contentions on admissibility:
  1. The Tribunal has jurisdiction ratione materiæ because “the decision challenged herein is in truth a regulatory one.”
  2. The Tribunal has jurisdiction ratione temporis because the Application was filed within three months of the Administrative Review decision, which defined reclassification criteria for the first time and constituted both a regulatory and an individual decision.
  3. No formal reclassification decisions were made in 2019 or 2020 because there were no written determinations nor explanations of rationale for the decisions.

### Consideration of the admissibility of the Application
- Statutory framework:
  - Article II, Section 1(a): Tribunal competent to hear any application by a staff member challenging the legality of an administrative act adversely affecting him or her.
  - Article II, Section 2(a): “administrative act” defined as “any individual or regulatory decision taken in the administration of the staff of the Fund.”
  - Article II, Section 2(b): “Regulatory decision” defined as “any rule concerning the terms and conditions of staff employment, including the General Administrative Orders and the Staff Retirement Plan, but excluding any resolutions adopted by the Board of Governors of the Fund.”
- Procedural requirements differ by challenge type:
  - Challenge to an individual decision:
    - Application must be filed within three months after all available channels of administrative review have been exhausted, or within three months after notification of the decision if no channels exist (see Article V and Article VI, Section 1).
    - Commentary emphasizes exhaustion requirement and the Grievance Committee’s role in producing a detailed record.
  - Challenge solely to a regulatory decision:
    - Application may be filed directly with the Tribunal within three months after the announcement or effective date of the decision, whichever is later (Article VI, Section 2).
    - Commentary justifies direct review to expedite resolution before implementation or reliance on the contested regulation.
  - Challenge to both an individual and a regulatory decision:
    - A regulatory decision may be challenged at any time in the context of an application challenging an individual decision taken pursuant to that regulation, but the application must be “admissible” (Article VI, Section 2).
    - Commentary clarifies that pursuit of administrative remedies on interpretative/application issues suspends the time period for seeking review of the underlying regulatory decision.
- Applicant asserts the Application challenges a regulatory decision and also involves an individual decision; seeks remedies including specific performance (reclassification).

### Conclusions of the Tribunal
- Respondent contends Applicant challenges only an individual decision and failed to timely challenge it.
- The Tribunal stated it does not need to resolve whether the contested action is solely an individual decision or also a regulatory decision in order to dispose of the Motion for Summary Dismissal.

*Judgment No. 2022-3, Administrative Tribunal of the International Monetary Fund, December 22, 2022.*

### Section 2

### j2022-3 - Section 2

### Admissibility and Proper Forum

- Applicant’s case is not admissible for review because, even if he challenges a regulatory decision, he does so in the context of a challenge to an individual decision and such an individual decision must first be pursued at the Grievance Committee.
- Applicant confirms he is challenging both the reclassification (an individual decision) and the criteria used to deny reclassification (which he contends constituted a regulatory decision), meaning the Grievance Committee is the proper forum to hear the case first and to dispose of issues within its jurisdiction.
- The Tribunal has not ruled on whether the criteria used to deny Applicant’s reclassification request constituted a regulatory decision.

### Statutory Basis for Dismissal

- The Tribunal relied on Article VI, Section 2, of the Statute and its Commentary to determine that the Grievance Committee is the appropriate initial forum.
- The Application was dismissed for failure to exhaust all available channels of administrative review as required by Article V of the Tribunal’s Statute.

### Ruling and Disposition

- The Motion for Summary Dismissal is granted to the extent it seeks dismissal of the Application for failure to exhaust administrative remedies.
- The Application of “UU” is dismissed.

### Decision Record

- The Administrative Tribunal of the International Monetary Fund unanimously decides:
  - the Motion for Summary Dismissal is granted; and
  - the Application of “UU” is dismissed.
- Signatories:
  - Nassib G. Ziadé, President
  - Deborah Thomas-Felix, Judge
  - Andrew K.C. Nyirenda, Judge
  - Celia Goldman, Registrar
- Location and date: Washington, D.C., December 22, 2022

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_Source: https://www.imf.org/-/media/files/imfat/j2022-3.pdf_