## JUDGMENT No. 2024-2

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### Introduction — procedural posture
- The Administrative Tribunal of the International Monetary Fund decided a Motion for Summary Dismissal of an Application by “XX”, a staff member of the Fund.
- Tribunal composition: Judge Nassib G. Ziadé, President, and Judges Maria Vicien Milburn and Andrew K.C. Nyirenda (Article VII, Section 4, of the Tribunal’s Statute).
- Representation:
  - Applicant: Messrs. Peter C. Hansen, J. Michael King, and Francis E. Waliczek, Law Offices of Peter C. Hansen, LLC.
  - Respondent: Mr. Erik Plith, Senior Counsel, and Ms. Tuuli Mooney-Schindler, Counsel, Administrative Law Unit, IMF Legal Department.
- The Motion sought summary dismissal on the ground that the Tribunal lacks jurisdiction ratione temporis.
- A Motion for Summary Dismissal suspends the period for answering the Application; at this stage the question is limited to admissibility.

### Factual background
- Employment-framework distinctions:
  - “Fund staff” serve under the Managing Director; “Board staff” serve Executive Directors (“EDs”).
  - OED Handbook, Part IV.B.1: Advisors and Assistants to Executive Directors shall not be included in the term “staff members.”
  - OED Handbook, Part IV.B.2: An Executive Director may terminate the appointment of an Advisor/Assistant at any time and for any reason the Executive Director considers sufficient.
  - OED Handbook, Part IV.B.5 and IV.B.6.1: Regular staff appointed as an Administrative or Staff Assistant to an ED are entitled upon expiration of the appointment to resume regular employment status at former grade, except where six years of continuous service triggers “grandfathering” per EBAP/86/169 (1/30/86).
- Applicant’s employment chronology:
  - 2007: began employment with the Fund as a contractual employee on Fund staff.
  - 2008–2014: served as Grade A6 Administrative Assistant to an ED (Board staff).
  - 2014: returned to Fund staff, retaining Grade A6.
  - Effective September 1, 2015: transferred from Fund staff to Board staff as a Grade A7 Administrative Assistant.
  - April 20, 2016: HRD letter countersigned by Applicant confirming change and citing EBAP/86/169.
  - July 1, 2019: promoted to Grade A8 while serving as Administrative Assistant to the ED.
  - December 2019: ED succeeded by a new ED.
  - May 10, 2021: new ED notified Applicant of decision to terminate appointment effective May 31, 2021.
  - June 1, 2021: HRD advised transfer to regular staff of the Fund at Grade A6 effective June 1, 2021 (letter dated June 3, 2021; transfer governed under EBAP/86/169, paragraph 2(b)).
  - July 8, 2021: Applicant signed acceptance of the change in appointment status after unsuccessful efforts to extend Board service to meet six-year requirement.
- Applicant’s efforts to reach six years via “bridging leave”:
  - Applicant requested to administratively remain in ED’s Office while on annual leave until September 2, 2021 to reach six years.
  - June 10, 2021 ED response: decision “irrevocably made and cannot be reversed,” approving request would be “an improper use of the office’s budget,” concluding “Sorry, we won’t be able to fulfill your request.”
  - June 11, 2021 ED declined 67-day leave request and suggested discussing alternatives with SEC and HRD.
  - July 6, 2021 meeting with then HRD Director: Applicant reports oral denial for three reasons including ED’s assessment of poor performance; parties do not dispute HRD Director took no further action.
  - July 27, 2021 Applicant e-mailed then HRD Director disputing meeting reasons and noting first reduced paycheck received July 23, 2021.

### Procedural history — internal remedies and Tribunal filings
- Grievance Committee:
  - January 6, 2022: Applicant filed a “placeholder” Grievance.
  - February 14, 2022: Amended Statement of Grievance filed and incorporated into Tribunal Application.
  - March 25, 2022: Respondent moved to dismiss the Grievance arguing assistants to EDs are not staff members for Grievance Committee jurisdiction and Applicant was out of time to challenge ED’s termination decision.
  - April 25, 2022: Applicant filed Partial Opposition, stating primary purpose was to “satisfy the ‘exhaustion of internal remedies’ requirement for passing the Tribunal’s threshold.”
  - May 11, 2022: Grievance Committee granted Motion to Dismiss on ground Grievance failed to allege adverse effect by a decision “inconsistent with Fund regulations governing personnel and their conditions of service” (Staff Handbook, Ch. 11.03, Section 5.6).
- Tribunal proceedings:
  - August 11, 2022: Applicant filed Application with the Tribunal.
  - August 23, 2022: Application supplemented per Rule VII(6); transmitted to Respondent August 24, 2022.
  - September 6, 2022: Registrar circulated notice summarizing issues pursuant to Rule IV(f).
  - September 23, 2022: Respondent filed Motion for Summary Dismissal (Rule XII).
  - October 24, 2022: Applicant filed Objection to the Motion.
  - January 8, 2024: Tribunal requested Applicant submit any request for legal fees and costs; Applicant filed Request January 16, 2024; Respondent submitted Comments January 24, 2024.
  - Tribunal suspended pleadings on the merits pending resolution of Motion.

### Parties’ principal contentions
- Applicant (merits and admissibility):
  - Core merits claims: Applicant should have been able to maintain Board grade and salary upon return after nearly six years; Fund practice permitted reintegration preserving grade and salary; ED and HRD acted arbitrarily, capriciously, and vindictively in refusing accrued-leave use to meet six years.
  - Relief sought (verbatim):
    - conversion of 65 days of Applicant’s unused annual Board leave (to cover the period June 1 – September 1, 2021) to satisfy the six-year requirement of EBAP/86/169;
    - rescission of Applicant’s existing Fund staff contract and terms of reference, and replacement by a new, backdated Fund staff contract allowing Applicant retroactively to: (i) maintain her employment as a Grade A8 employee; (ii) receive the same salary she did prior to returning to the staff of the Fund; and (iii) receive the full pension credit and rights she would have received before the downgrade;
    - three years’ salary as moral and intangible damages;
    - all retroactive salary increases and benefits to which Applicant would have been entitled had her grade and salary not been reduced; and
    - legal fees and costs, which the Tribunal may award, in accordance with Article XIV, Section 4, of the Tribunal’s Statute, if it concludes that the Application is well-founded in whole or in part.
  - Admissibility contentions: Tribunal has jurisdiction ratione temporis because Applicant timely challenged terms of post-termination transfer to Fund staff; filed Grievance within six months of July 6, 2021 meeting; filed Tribunal Application within three months of Grievance Committee dismissal; alternatively, exceptional circumstances justify timing.
- Respondent (admissibility):
  - Core assertions: Application untimely—should have been filed within three months of the ED’s termination decision; assistants to EDs have direct recourse to Tribunal and no internal channels to exhaust; misfiling with Grievance Committee does not extend time; HRD letter was not an administrative act; Article XX bars challenges to EBAP/86/169.

### Tribunal’s legal framework and analysis on summary dismissal
- Applicable procedural rules and statutory provisions preserved verbatim for reference: Rule VII(6); Rule IV(f); Rule XII (Summary Dismissal) including paragraphs 1–8; Rule XXII(4); Rule XVII; Rule XIII; Article II, Section 1 and Article II, Section 2(c)(i)–(iii); EBAP/86/169; Article XIV, Section 4; Article XX.
- Standard on summary dismissal (Rule XII):
  - Summary dismissal permitted only when Application is “clearly inadmissible” (Rule XII(1)); high bar to protect applicants’ right to be heard.
- Key threshold question: Is the Application “clearly inadmissible” for lack of jurisdiction ratione temporis?

### Tribunal’s findings on jurisdiction ratione personae and ratione temporis
- Jurisdiction ratione personae:
  - Article II, Section 2(c)(i) identified as principal pathway for applications to the Tribunal.
  - Applicant fits both categories: a “current or former assistant to an Executive Director” and a person whose appointment provides that she “shall be a member of the staff.”
  - Tribunal assesses which “administrative act” is challenged to determine applicable prong; contested acts here affect Applicant’s grade and salary upon re-entry to Fund staff.
  - Precedent (Mr. M. D’Aoust, IMFAT Judgment No. 1996-1; Mr. “A”, IMFAT Judgment No. 1999-1) supports jurisdiction under Article II, Section 2(c)(i) where challenged acts affect the individual in capacity as staff member even if decision precedes staff status.
  - Conclusion: Tribunal may exercise jurisdiction ratione personae on basis of Article II, Section 2(c)(i).
- Timeliness under Article II, Section 2(c)(i) (staff-member pathway):
  - Staff rules require Grievance filing within six months from date of challenged decision or its communication (Staff Handbook, Ch. 11.03, Section 4.7).
  - Key dates:
    - June 1, 2021: Applicant’s contested re-entry to Fund staff on terms dated June 3, 2021.
    - July 6, 2021: Applicant’s asserted meeting with then HRD Director refusing bridging leave.
    - January 6, 2022: Applicant filed Grievance.
  - If reckoned from July 6, 2021 meeting, Grievance was timely; if from June 1, 2021 re-entry, Grievance filed beyond six-month deadline by a little more than one month.
  - Article VI, Section 3 permits Tribunal to waive time limits in exceptional circumstances.
  - Tribunal finds Fund’s bifurcated dispute-resolution approach and contextual communications constituted an exceptional circumstance reasonably excusing Applicant’s moderate delay.
  - After Grievance Committee dismissal, Applicant exhausted available channels and filed Tribunal Application three months thereafter in compliance with Article VI, Section 1.
  - Conclusion: Respondent has not shown the Application is “clearly inadmissible” for lack of jurisdiction ratione temporis under Section 2(c)(i).
- Timeliness under Article II, Section 2(c)(ii) (assistant-to-ED pathway):
  - Under Article VI, Section 1, where no internal channels exist, an application must be filed within three months after notification of contested decision.
  - Respondent’s position: relevant decision was ED’s termination notified May 10, 2021 and effective May 31, 2021; Applicant should have filed within three months of May 31, 2021.
  - Actual filing: Application filed August 11, 2022 (more than one year later).
  - Tribunal consideration: Fund communications (2015 and 2021) identifying HRD contacts and the ED’s June 11, 2021 email directing Applicant to SEC and HRD may have reasonably led Applicant to seek Grievance review rather than direct Tribunal review.
  - Conclusion: Respondent has not shown the Application is “clearly inadmissible” for lack of jurisdiction ratione temporis under Section 2(c)(ii) given contextual factors and Applicant’s good-faith recourse to internal review.

### Findings on challenged regulatory decision (EBAP/86/169) and merits posture
- Respondent characterized Applicant’s pleadings as a regulatory challenge to EBAP/86/169 and invoked Article XX to bar challenges to administrative acts pre-dating October 15, 1992.
- Applicant framed claims as challenges to interpretation and application of EBAP/86/169, seeking its benefits rather than annulment.
- Tribunal held it is premature on summary-dismissal to decide whether the Application raises an admissible challenge to EBAP/86/169; that question goes to the merits.

### Conclusions, order, and procedural directives
- The Tribunal concludes Respondent has not shown the Application is “clearly inadmissible” for lack of jurisdiction ratione temporis, whether jurisdiction is based on Article II, Section 2(c)(i) or Article II, Section 2(c)(ii).
- The Motion for Summary Dismissal is denied.
- Pleadings on the merits shall resume: Fund’s Answer, Applicant’s Reply, and Fund’s Rejoinder to follow according to Tribunal Rules of Procedure.
- Tribunal deferred decisions on:
  - production of documents requested under Rule XVII until merits phase;
  - Applicant’s request for oral proceedings under Rule XIII until merits phase.
- Legal fees and costs:
  - Applicant filed Request for Costs January 16, 2024; Respondent filed Comments January 24, 2024.
  - Decision on legal fees and costs deferred to merits phase.
- Decision (unanimous): Motion for Summary Dismissal denied; pleadings on merits to resume.
- Signatories and date: Nassib G. Ziadé, President; Maria Vicien Milburn, Judge; Andrew K.C. Nyirenda, Judge; /s/ Nassib G. Ziadé, President; /s/ Celia Goldman, Registrar; Washington, D.C. June 7, 2024.

*Administrative Tribunal of the International Monetary Fund, Washington, D.C. June 7, 2024.*

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

### INTRODUCTION

### Procedural posture
- The Administrative Tribunal of the International Monetary Fund (“Tribunal”) decided a Motion for Summary Dismissal (“Motion”) of an Application by “XX”, a staff member of the Fund.
- The Tribunal was composed pursuant to Article VII, Section 4, of the Tribunal’s Statute of Judge Nassib G. Ziadé, President, and Judges Maria Vicien Milburn and Andrew K.C. Nyirenda.
- Applicant was represented by Messrs. Peter C. Hansen, J. Michael King, and Francis E. Waliczek, Law Offices of Peter C. Hansen, LLC.
- Respondent was represented by Mr. Erik Plith, Senior Counsel, and Ms. Tuuli Mooney-Schindler, Counsel, Administrative Law Unit, IMF Legal Department.
- The Motion seeks summary dismissal on the ground that the Tribunal lacks jurisdiction ratione temporis over the Application.
- A Motion for Summary Dismissal suspends the period for answering the Application until the Tribunal decides the Motion; at this stage the question before the Tribunal is limited to admissibility.

### FACTUAL BACKGROUND

### A. Separate employment frameworks for Fund staff and Board staff
- The dispute arises from distinct employment frameworks for “Fund staff” (working under the Managing Director) and “Board staff” (serving Executive Directors, “EDs”).
- The Handbook on Executive Board Matters (“OED Handbook”), Part IV.B.1, states: “In the Rules and Regulations, Administrative Orders and other decisions, Advisors and Assistants to Executive Directors shall not be included in the term ‘staff members.’”
- Salient features include:
  - An Executive Director may terminate the appointment of an Advisor/Assistant at any time and for any reason the Executive Director considers sufficient (OED Handbook, Part IV.B.2).
  - A regular staff member appointed as an Administrative or Staff Assistant to an ED is “entitled upon the expiration of the appointment to resume regular employment status with the Fund at his or her former grade” (OED Handbook, Part IV.B.5), unless the individual “has completed six years of continuous service” as an Assistant to an ED, in which case “[f]or two years from the date of the appointment [to regular employment status], the individual’s grade and salary will be ‘grandfathered’ in accordance with the provisions approved at Executive Board Meeting 86/16 (1/30/86)” (OED Handbook, Part IV.B.6.1).
- These employment-framework differences are reflected in the Tribunal’s Statute and are central to the admissibility dispute.

### B. Applicant’s initial employment with the Fund; transfer to Board staff; and first return to Fund staff (2007–2014)
- Applicant began employment with the Fund in 2007 as a contractual employee on Fund staff.
- In 2008 Applicant transferred to Board staff and served as a Grade A6 Administrative Assistant to an ED until 2014.
- In 2014 Applicant returned to Fund staff, retaining Grade A6.

### C. Applicant’s second appointment to Board staff (2015–2021)
- Effective September 1, 2015, Applicant transferred from Fund staff to Board staff as a Grade A7 Administrative Assistant to a different ED.
- A letter from the Fund’s Human Resources Department (“HRD”), dated April 20, 2016 and countersigned by Applicant on the same date, confirmed the change in appointment status effective September 1, 2015 and cited EBAP/86/169 (July 11, 1986), explaining re-employment rights and the six-year/grandfathering rule.
- On July 1, 2019, while serving as an Administrative Assistant to the ED, Applicant was promoted to Grade A8.
- In December 2019, the ED under whom Applicant had been serving was succeeded by a new ED.

### D. Termination of Applicant’s Board appointment (May 31, 2021) and return to Fund staff (June 1, 2021)
- On May 10, 2021, the new ED notified Applicant that he had decided to terminate her appointment effective May 31, 2021; the decision was communicated in person and followed by an e-mail stating the decision “was not taken lightly” and “was grounded on careful assessment of [Applicant’s] performance.”
- By letter of June 3, 2021, HRD advised Applicant of her “transfer to the regular staff of the Fund” at Grade A6, effective June 1, 2021, stating the transfer was governed under EBAP/86/169, paragraph 2(b).
- Applicant signed acceptance of “this change in appointment status” on July 8, 2021, after unsuccessful efforts to extend Board service to meet the six-year requirement and retain Grade A8 upon return to Fund staff.

### E. Applicant’s efforts to extend to six years Board employment through requests for “bridging leave”
- Applicant sought to use accrued annual leave to extend her appointment in the ED’s office to September 2, 2021 to reach six years of Board service and avoid downgrading from Grade A8 to Grade A6.

(1) Applicant’s requests to the ED
- On June 9, 2021 Applicant wrote to the ED requesting approval to administratively remain in the ED’s Office while on annual leave until September 2, 2021.
- The ED replied on June 10, 2021: the decision was “irrevocably made and cannot be reversed,” and “Fulfilling your request would represent an improper use of the office’s budget,” concluding “Sorry, we won’t be able to fulfill your request.”
- On June 11, 2021 Applicant reiterated her request, explaining she sought precisely 67 days of vacation leave; the ED replied the same day declining and suggested Applicant discuss alternatives with SEC and HRD.

(2) Applicant’s requests to the then HRD Director
- On July 6, 2021 Applicant met with the then HRD Director and had sent a written summary seeking use of accrued annual leave until September 2, 2021 to avoid downgrade.
- Applicant’s account is that the then HRD Director denied the leave request orally for three reasons: (i) the ED’s assessment of poor performance; (ii) Applicant returning for a second round of help after HRD had previously made an exception for her first period of Board service from June 2008 to May 2014; and (iii) the option for Applicant to have taken annual leave during Board service or to carry over unused leave to another Fund department.
- The parties do not dispute that the then HRD Director took no further action in response to Applicant’s request.
- On July 8, 2021 Applicant signed the letter accepting transfer to Fund staff at Grade A6, effective June 1, 2021; Applicant asserts she “signed her backdated . . . contract under duress.”
- On July 27, 2021 Applicant e-mailed the then HRD Director disputing the meeting reasons, citing other Assistants who had been granted three months’ bridging leave, and stating she received her first paycheck with the reduced salary on July 23, 2021.

### PROCEDURAL HISTORY

### Grievance Committee proceedings
- On January 6, 2022 Applicant filed a “placeholder” Grievance with the Fund’s Grievance Committee; on February 14, 2022 Applicant filed an Amended Statement of Grievance, incorporated by reference into the Application before the Tribunal.
- On March 25, 2022 Respondent filed a Motion to Dismiss the Grievance, arguing assistants to EDs are not staff members for Grievance Committee jurisdiction; Applicant was out of time to challenge the ED’s termination decision; and neither the HRD letter nor Applicant’s engagement with the then HRD Director amounted to a grievable decision.
- On April 25, 2022 Applicant filed a Partial Opposition to the Motion to Dismiss, stating the “entire reason” for filing the Grievance was to “satisfy the ‘exhaustion of internal remedies’ requirement for passing the Tribunal’s threshold,” and noting a lacuna leaving Board-level staff uncertain as to where to start for remedies.
- On May 11, 2022 the Grievance Committee granted the Motion to Dismiss the Grievance on the ground that the Grievance failed to allege that Applicant was adversely affected by a decision “inconsistent with Fund regulations governing personnel and their conditions of service” (Staff Handbook, Ch. 11.03, Section 5.6).

### PROCEDURE BEFORE THE TRIBUNAL

### Motion for Summary Dismissal
- Respondent filed a Motion for Summary Dismissal before the Tribunal asserting lack of jurisdiction ratione temporis as the basis for summary dismissal.
- The Tribunal notes that because the pleadings on the merits have been suspended pending the Motion, Respondent’s version of the facts has yet to be presented fully to the Tribunal.

*Administrative Tribunal of the International Monetary Fund, JUDGMENT No. 2024-2*

### 26. On August 11, 2022, Applicant filed an Application with the Tribunal. On August 23, 2022,

### j2024-2 - 26. On August 11, 2022, Applicant filed an Application with the Tribunal. On August 23, 2022,

### Procedural history
- On August 11, 2022, Applicant filed an Application with the Tribunal.
- On August 23, 2022, the Application was supplemented at the request of the Registrar, in accordance with Rule VII(6) of the Tribunal’s Rules of Procedure, and was transmitted to Respondent on the following day.
- On September 6, 2022, pursuant to Rule IV(f) of the Tribunal’s Rules of Procedure, the Registrar circulated within the Fund a notice summarizing the issues raised in the Application.
- On September 23, 2022, pursuant to Rule XII of the Tribunal’s Rules of Procedure, Respondent filed its Motion for Summary Dismissal (“Motion”) of the Application.
- On October 24, 2022, Applicant responded with an Objection (“Objection”) to the Motion.
- On January 8, 2024, the Tribunal requested that Applicant submit any request for legal fees and costs incurred in responding to the Motion, with supporting documentation; Applicant filed her Request on January 16, 2024; Respondent submitted responsive Comments on January 24, 2024.
- On January 8, 2024, the Tribunal notified the parties of its decisions on Applicant’s preliminary requests.

### Preliminary requests and Tribunal rulings
- Applicant’s request for anonymity
  - Applicant requested that her name not be made public in the Tribunal’s Judgment pursuant to Rule XXII.
  - Respondent opposed the request.
  - The Tribunal may grant anonymity on a showing of “good cause” (Rule XXII(4)).
  - Tribunal jurisprudence: anonymity historically linked to health, family, or misconduct allegations; more recently extended where evidence relates to applicant’s job performance as assessed or perceived by managers.
  - Finding: elements of the factual record make reference to Applicant’s work performance; the Tribunal granted Applicant’s request that her name not be made public in the Judgment.
  - The Tribunal did not accept Applicant’s unsubstantiated assertion of fear of retaliation as a ground for anonymity.

- Applicant’s requests for production of documents
  - Applicant made requests under Rule XVII for production of documents.
  - Respondent did not address those requests in its Motion; Applicant did not address them in her Objection.
  - Tribunal considered disposition of document requests unnecessary to determination of the pending Motion and deferred decision on production until the merits phase.

- Applicant’s request for oral proceedings
  - Applicant requested oral proceedings under Rule XIII, including oral hearing of counsel and any witnesses the Tribunal wishes to question.
  - Respondent did not address the request in its Motion; Applicant did not address it in her Objection regarding summary dismissal.
  - Tribunal decided not to hold oral proceedings at the admissibility stage and deferred decision on oral proceedings until the merits phase.

### Parties’ principal contentions — Applicant (merits)
- Core assertions
  - In returning to Fund staff after nearly six years on Board staff, Applicant should have been able to maintain her Board grade and salary; Applicant was subjected to an individual decision and an outdated rule that severely penalizes those who return to Fund service before completing six full years of Board employment.
  - The Fund has long had a practice of permitting reintegration of Board staff with less than six years’ service into Fund staff on bespoke arrangements preserving Board grade and salary.
  - The ED and the then HRD Director acted arbitrarily, capriciously, and vindictively in refusing Applicant’s requests to use leave accrued during Board service to meet the six-year mark.

- Relief sought (verbatim)
  - conversion of 65 days of Applicant’s unused annual Board leave (to cover the period June 1 – September 1, 2021) to satisfy the six-year requirement of EBAP/86/169;
  - rescission of Applicant’s existing Fund staff contract and terms of reference, and replacement by a new, backdated Fund staff contract allowing Applicant retroactively to: (i) maintain her employment as a Grade A8 employee; (ii) receive the same salary she did prior to returning to the staff of the Fund; and (iii) receive the full pension credit and rights she would have received before the downgrade;
  - three years’ salary as moral and intangible damages;
  - all retroactive salary increases and benefits to which Applicant would have been entitled had her grade and salary not been reduced; and
  - legal fees and costs, which the Tribunal may award, in accordance with Article XIV, Section 4, of the Tribunal’s Statute, if it concludes that the Application is well-founded in whole or in part.

### Parties’ principal contentions — Respondent (admissibility)
- Core assertions
  - Applicant failed to file her Application within the statutory time limit, i.e., three months from the termination decision made by the ED; the Tribunal therefore lacks jurisdiction ratione temporis.
  - Assistants to EDs have direct recourse to the Tribunal because there are no available channels of administrative review to exhaust.
  - Applicant should have known proper venue and procedures; filing with the wrong forum does not extend the time limit.
  - Applicant’s misdirection of her complaint to the Grievance Committee does not relieve her of the requirement to file a timely Tribunal application; the Grievance Committee’s dismissal for lack of jurisdiction does not give rise to a new administrative decision for Tribunal timeliness purposes.
  - The letter from HRD informing Applicant of terms of return to Fund staff effective June 1, 2021, was not an administrative act subject to challenge.
  - Applicant’s efforts to seek reconsideration by the ED of the termination date do not give rise to a new and timely challenge.
  - The then HRD Director’s engagement post-termination was not an administrative act subject to challenge.
  - Article XX of the Tribunal’s Statute precludes challenges to administrative acts pre-dating the entry in force of the Tribunal’s Statute and thus bars challenge to the 1986 Board decision EBAP/86/169.

### Parties’ principal contentions — Applicant (admissibility)
- Core assertions
  - The Tribunal has jurisdiction ratione temporis because Applicant timely challenged the terms of her post-termination transfer to Fund staff, implicating managers at Board and staff levels.
  - Applicant litigates as Fund staff because she is currently employed by the Fund staff and final decisions regarding her transfer terms were taken by Fund-staff management.
  - Applicant timely filed her Grievance six months from the then HRD Director’s July 6, 2021 refusal to allow Applicant to use accrued leave to meet the six-year requirement; Applicant filed her Tribunal Application within three months from the Grievance Committee’s dismissal.
  - Even if required to file as Board staff, exceptional circumstances justify the timing of her Tribunal Application: belief that ED was not final decision-maker; ability to resort to then HRD Director.
  - Exceptional circumstances include the Fund’s “disjointed dispute resolution eco-system” that does not address transition disputes between Board staff and Fund staff.
  - The Fund’s theory that EBAP/86/169 is immune to challenge under Article XX is “tenuous at best”; discretionary authority in implementing EBAP is reviewable; the EBAP is “long overdue for formal revocation based on desuetude.”

### Tribunal’s analysis framework on summary dismissal
- Standard for summary dismissal
  - Rule XII permits summary dismissal only when an application is “clearly inadmissible” (Rule XII(1)); the Rule sets a high bar.
  - The Rule protects applicants’ right to be heard and aims to dismiss only cases clearly irreceivable or devoid of merit.
  - The Rule also protects the Tribunal and Respondent from expenditure of resources where inadmissibility is clear at the outset.
  - The “clearly inadmissible” standard guards against erroneous admissibility decisions before full pleadings.

- Key threshold question for Respondent’s Motion
  - Is the Application “clearly inadmissible” for lack of jurisdiction ratione temporis?

### Tribunal’s consideration of Respondent’s jurisdictional argument
- Respondent’s summary of its ratione temporis contention
  - The Application is cognizable only as a challenge to an ED decision; assistants to EDs access the Tribunal under Article II, Section 2(c)(ii) and have no internal channels to exhaust; therefore the Application should have been filed within three months of the ED’s termination decision.
  - The letter from HRD was not an administrative act; refusals to grant bridging leave cannot be contested; Grievance Committee dismissal was not a new administrative decision.

- Tribunal’s interrogation of Respondent’s premise
  - Respondent posits the ED’s termination decision as the sole administrative act at issue; Tribunal examines Applicant’s competing merits theory:
    - (a) HRD had discretion to vary terms of re-entry to Fund staff irrespective of six years of Board service.
    - (b) Either the ED or the then HRD Director could have acceded to Applicant’s requests to extend Board service to meet the six-year mark.
  - The Tribunal must take Applicant’s theory of the case into account for purposes of deciding summary dismissal.
  - The ED’s termination decision gave rise to subsequent acts that may not have been predetermined by that decision; the subsequent acts may constitute separate “administrative acts” that “adversely affected” Applicant within the Statute.
  - Applicant asserts that some acts fall within Article II, Section 2(c)(i) (member of the staff) rather than Section 2(c)(ii) (assistant to an ED), i.e., she comes before the Tribunal as Fund staff rather than Board staff, invoking “hybrid status and claims” related to transition between employment regimes.

- Jurisdiction ratione personae as dispositive for timeliness
  - Applicant’s invocation of Article II, Section 2(c)(i) is central to her argument that the Application is not “clearly inadmissible” for lack of jurisdiction ratione temporis because the route to the Tribunal and the timeliness calculation depend on which prong governs.

### Legal provisions and references preserved verbatim
- Rule VII(6)
- Rule IV(f)
- Rule XII and its text (Summary Dismissal), including paragraphs 1–8 as reproduced.
- Rule XXII(4)
- Rule XVII
- Rule XIII
- Article II, Section 1 and Article II, Section 2(c)(i)–(iii)
- EBAP/86/169
- Article XIV, Section 4
- Article XX

*Excerpt from the Tribunal's judgment.*

### 50. The principal means by which applications reach the Tribunal is Article II, Section 2(c)(i).

### j2024-2 - 50. The principal means by which applications reach the Tribunal is Article II, Section 2(c)(i).

### Background and statutory framework
- The Tribunal identifies Article II, Section 2(c)(i) as the principal means by which applications reach the Tribunal.
- The instant case is the first in which the Tribunal was presented with an assertion that jurisdiction ratione personae is based on Article II, Section 2(c)(ii) rather than Section 2(c)(i); Respondent raises that assertion in seeking summary dismissal.
- Legislative history explains that Article II, Section 2(c)(ii) grants jurisdiction over “any current or former assistant to an Executive Director” to provide recourse for employees who otherwise lack a forum for resolution of employment disputes. The history notes:
  - Assistants to Executive Directors are employees of the Fund but are not considered staff members and historically lacked recourse to arbitration.
  - The Tribunal, in reviewing decisions affecting assistants, must account for the “special legal framework” applicable to this category of employee, including differing rights from regular staff members (citation: “Establishment of an Administrative Tribunal for the Fund—Review of the Draft Statute,” EBAP/92/126 (July 20, 1992), p. 9).

### Jurisdiction ratione personae — interpretive approach and precedents
- The Tribunal observes that Applicant is both:
  - a “current or former assistant to an Executive Director,” and
  - a “person whose current or former letter of appointment . . . provides that [s]he shall be a member of the staff.”
- The Tribunal treats jurisdiction ratione personae and jurisdiction ratione materiae as “closely intertwined” (Mr. “A”, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1999-1 (August 12, 1999), para. 51). It therefore assesses what “administrative act” the applicant seeks to challenge to identify the applicable prong of jurisdiction ratione personae.
- Applicant challenges decisions taken by different decision-makers, including those under the authority of the Managing Director that affect Applicant in her capacity as Fund staff. The Application identifies contested actions as, inter alia:
  - refusal of the Fund to maintain Applicant’s grade and salary when she transferred from the Board to the regular Fund staff;
  - arbitrary and capricious official refusals to allow her to use 65 days of accrued leave to meet a six (6) year threshold allegedly required for her to maintain her professional standing.
- Respondent acknowledged that “Applicant challenges the terms of her transfer to staff as of June 1, 2021, following the termination of her appointment as an Administrative Assistant to an Executive Director,” but for purposes of jurisdictional categorization identified the ED’s termination decision as the contested administrative act.
- Precedent:
  - Mr. M. D’Aoust, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 1996-1 (April 2, 1996): the Tribunal found that a contested decision setting salary taken prior to the applicant becoming a staff member “thereupon and thereafter affected him as a member of the staff,” providing jurisdiction ratione personae under Article II, Section 2(c)(i).
  - The Tribunal has stated that decisions preliminary to becoming a staff member may be within its competence ratione materiae “as long as the challenged act affects the adversely affected individual in his capacity as a member of the staff.” (Mr. “A”, paras. 54-55.)
- Tribunal analysis and conclusion on prong applicability:
  - Article II, Section 2(c)(ii) is narrowly drawn to cover a small class intended to fill a gap in dispute resolution.
  - Limiting jurisdiction here solely to Section 2(c)(ii) could preclude the Tribunal from reaching significant questions because Applicant’s complaint primarily concerns acts affecting her as Fund staff after the conclusion of her Board appointment.
  - The Tribunal’s jurisprudence demonstrates that Section 2(c)(i) covers circumstances where the challenged act affects an applicant as a staff member even if taken before the applicant became a staff member.
  - Because the contested decisions affect Applicant in her capacity as Fund staff by determining grade and salary upon re-entry, the Tribunal concludes it may exercise jurisdiction ratione personae on the basis of Article II, Section 2(c)(i).

### Timeliness (jurisdiction ratione temporis) — overview and legal standards
- Distinction in exhaustion/timeliness rules:
  - A “person whose current or former letter of appointment . . . provides that he shall be a member of the staff” serves under the Managing Director and must exhaust available review channels (e.g., Grievance Committee) and then file with the Tribunal within three months thereafter (Article VI, Section 1).
  - A “current or former assistant to an Executive Director” serves under an ED and, in the absence of Fund review channels, must file with the Tribunal within three months after notification of the contested decision (Article VI, Section 1).
- Respondent contends the Application was out of time whether Applicant should have filed with the Grievance Committee (which Respondent argues lacked jurisdiction) or directly with the Tribunal (which Respondent contends had exclusive jurisdiction).

(a) If jurisdiction is based on Article II, Section 2(c)(i) (staff-member pathway)
- Fund rules require a staff member seeking Grievance Committee review of a decision taken at the level of the HRD Director to file a Grievance within six months from the later of the date of the challenged decision or of its communication to the staff member (Staff Handbook, Ch. 11.03, Section 4.7).
- Key dates and filings:
  - Applicant filed her Grievance with the Grievance Committee on January 6, 2022.
  - Applicant asserts a July 6, 2021 meeting at which the then HRD Director denied Applicant’s request to use leave accrued during Board service to meet the six-year rule of EBAP/86/169.
  - If the filing period is reckoned from that July 6, 2021 meeting, the Grievance was timely; the record is not entirely clear whether any written decision was communicated at that meeting.
  - If the period is reckoned from Applicant’s June 1, 2021 re-entry to Fund staff on contested terms, the Grievance was filed beyond the six-month deadline.
- Exceptional circumstances and waiver authority:
  - Article VI, Section 3 permits the Tribunal to waive time limits in exceptional circumstances.
  - Tribunal jurisprudence recognizes authority to consider exceptional circumstances at anterior stages because Fund recourse procedures are complementary and meant to afford remedies where merited (Estate of Mr. “D”, Applicant v. International Monetary Fund, Respondent (Admissibility), IMFAT Judgment No. 2001-1 (March 30, 2001), para. 102).
  - Exceptional circumstances should not be lightly found; the Tribunal considers extent and nature of delay and the purposes of exhaustion requirements (Estate of Mr. “D”, paras. 104, 108, 66).
- Tribunal findings on timeliness under Section 2(c)(i):
  - The delay in filing the Grievance, if reckoned from June 1, 2021 re-entry, amounted to little more than one month beyond the six-month limit.
  - The Tribunal identifies the Fund’s bifurcated dispute-resolution approach for Board staff versus Fund staff—particularly in disputes over entitlements when moving between regimes—as a complication that presented an exceptional circumstance reasonably excusing Applicant’s moderate delay.
  - After the Grievance Committee dismissed the Grievance for lack of jurisdiction, Applicant exhausted available channels of administrative review as required by Article V, Section 1, and filed her Application three months thereafter in compliance with Article VI, Section 1.
  - Conclusion: insofar as jurisdiction may be based on Article II, Section 2(c)(i), Respondent has not shown the Application is “clearly inadmissible” for lack of jurisdiction ratione temporis.

(b) If jurisdiction is based on Article II, Section 2(c)(ii) (assistant-to-ED pathway)
- Article VI, Section 1 requires that where no channels of review exist, an application must be filed with the Tribunal within three months after notification of the contested decision.
- Respondent’s position:
  - The relevant decision is the ED’s termination decision, notified to Applicant on May 10, 2021, and effective May 31, 2021.
  - Under Section 2(c)(ii), the Application should therefore have been filed three months from May 31, 2021.
- Actual filing:
  - The Application was filed on August 11, 2022, more than a year later and following dismissal of Applicant’s Grievance.
- Tribunal consideration of communications and Applicant’s conduct:
  - Fund communications when Applicant transferred in 2015 and back in 2021 each identified an HRD contact for questions on re-employment rights, which may have suggested re-entry terms were a matter for HRD review.
  - The ED’s June 11, 2021 email denying Applicant’s request for “bridging leave” advised Applicant to discuss the matter with SEC and HRD and requested that any new request be made to SEC and HRD.
  - Applicant reports that the then HRD Director raised an issue concerning alleged job performance while serving under the ED.
- Implication:
  - These communications may have reasonably led Applicant to seek review as Fund staff by filing a Grievance rather than pursuing direct Tribunal review as Board staff.

### Tribunal conclusions (as expressed in the source)
- The Tribunal may exercise jurisdiction ratione personae in this case on the basis of Article II, Section 2(c)(i) because the contested decisions affect Applicant in her capacity as Fund staff by determining her grade and salary upon re-entry to Fund staff.
- Insofar as jurisdiction may be based on Article II, Section 2(c)(i), Respondent has not shown that the Application is “clearly inadmissible” for lack of jurisdiction ratione temporis.
- Insofar as jurisdiction may be based on Article II, Section 2(c)(ii), the Application would have been untimely if filed three months from May 31, 2021; however, the Fund’s communications and the procedural context bear on Applicant’s choice to file a Grievance and on the timeliness analysis.

*The Tribunal (IMF Administrative Tribunal) — judgment analysis and findings as presented in the cited sections.*

### 77. In these circumstances, the Tribunal considers that Applicant’s decision to file a Grievance

### 77. In these circumstances, the Tribunal considers that Applicant’s decision to file a Grievance

### Jurisdiction ratione personae and ratione temporis
- The Tribunal found that Applicant’s decision to file a Grievance with the Fund’s Grievance Committee “evidenced a good faith effort at seeking review, especially in light of the Fund’s communications and Applicant’s theory of the case.” Mr. A. Billmeier, Applicant v. International Monetary Fund, Respondent, IMFAT Judgment No. 2010-3 (February 9, 2010), para. 69.
- The filing with the Grievance Committee was treated as an exceptional circumstance that reasonably excused the delay in Applicant’s filing with the Tribunal.
- The Tribunal concludes that insofar as jurisdiction ratione personae may be based on Article II, Section 2(c)(ii), of the Statute, Respondent has not shown that the Application is “clearly inadmissible” for lack of jurisdiction ratione temporis.
- The Tribunal further concludes that Respondent has not shown that the Application is “clearly inadmissible” in respect of the “individual decisions” that Applicant seeks to challenge, and the case will proceed to the merits phase.

### Possible challenge to “regulatory decision” (EBAP/86/169)
- Respondent’s Motion characterizes Applicant’s pleadings as raising “veiled challenges” to EBAP/86/169, the 1986 Board decision that set the six-year threshold for a former assistant to an ED to retain their grade level upon return to Fund staff, and invokes Article XX of the Tribunal’s Statute to bar challenges to administrative acts pre-dating October 15, 1992.
- Applicant describes EBAP/86/169 as “an arbitrary and unconscionable rule” that may be “curtailed de facto” by review of its implementation, and emphasizes that she challenges the “interpretation and application” of the rule in the circumstances of her case.
- Applicant does not request annulment of the rule; she seeks to avail herself of its benefits.
- Respondent maintains that Applicant is “dissatisfied with the proper application of this policy, which can only be construed as a regulatory challenge to the Board’s 1986 decision.”
- The Tribunal observes that Respondent’s argument depends on its view that the setting of Applicant’s grade and salary upon return to Fund staff was determined automatically by operation of EBAP/86/169; the Tribunal notes that this question goes to the merits of the dispute.
- The Tribunal considers it premature at this stage to decide whether the Application raises an admissible challenge to a “regulatory decision.”

### Conclusions of the Tribunal
- The Tribunal concludes that Respondent has not shown that the Application is “clearly inadmissible” for lack of jurisdiction ratione temporis, whether jurisdiction ratione personae is based on Article II, Section 2(c)(i) or on Article II, Section 2(c)(ii), of the Statute.
- The Tribunal observes that the differences between the parties concerning admissibility reflect fundamentally different theories on the merits of the case, which cannot be resolved by a ruling on a motion for summary dismissal.
- Citing protections that Rule XII affords applicants against having their right to be heard cut off prematurely and against the risk of the Tribunal’s taking an erroneous decision as to admissibility when pleadings have yet to unfold in full (Mr. “QQ”, paras. 47-48), the Tribunal concludes that Respondent has failed to meet the high bar of showing that the Application is “clearly inadmissible” under Rule XII of the Tribunal’s Rules of Procedure.
- Conclusion: The Motion for Summary Dismissal is denied.
- Procedural directive: As the filing of the Motion suspended the pleadings on the merits, the Fund’s Answer, Applicant’s Reply, and the Fund’s Rejoinder shall now follow according to the schedule prescribed by the Tribunal’s Rules of Procedure.

### Legal fees and costs
- Applicant submitted her Request for Costs on January 16, 2024.
- Respondent filed responsive Comments on January 24, 2024.
- The Tribunal has decided to defer its decision on legal fees and costs until the merits phase of the proceedings.

### Decision (unanimous)
- The Administrative Tribunal of the International Monetary Fund unanimously decides that:
  - The Motion for Summary Dismissal of the Application of “XX” is denied, and the pleadings on the merits shall resume.
- Signatories:
  - Nassib G. Ziadé, President
  - Maria Vicien Milburn, Judge
  - Andrew K.C. Nyirenda, Judge
  - /s/ Nassib G. Ziadé, President
  - /s/ Celia Goldman, Registrar
- Location and date: Washington, D.C. June 7, 2024

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_Source: https://www.imf.org/-/media/files/imfat/j2024-2.pdf_