## j2024-3 - INTRODUCTION ## Source details **Canonical URL:** [j2024-3 - INTRODUCTION](https://www.imf.org/-/media/files/imfat/j2024-3.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/j2024-3.pdf.md) - [Structured JSON version](/-/media/files/imfat/j2024-3.pdf.json) --- ### INTRODUCTION - Tribunal composition: - Judge Nassib G. Ziadé (President), Judges Maria Vicien Milburn and Andrew K.C. Nyirenda, pursuant to Article VII, Section 4 of the Tribunal’s Statute. - Parties and representation: - Applicant: “YY”, a retired staff member of the Fund; counsel: Peter C. Hansen, J. Michael King, Francis E. Waliczek, Law Offices of Peter C. Hansen, LLC. - Respondent: International Monetary Fund; counsel: Evelyn Kachaje, Counsel, Administrative Law Unit, IMF Legal Department. - Central subject: - Challenge to the decision to ban Applicant’s entry to Fund Headquarters buildings following an allegation of sexual harassment by a Fund staff member. - Applicant’s principal claims: - Entry ban imposed without due process. - Fund publicized the entry ban within a Fund department, causing further harm. - The ban hampers Applicant’s post-Fund career. - Procedural posture: - Applicant filed the Application concurrently with filing a Grievance with the Fund’s Grievance Committee and asks the Tribunal to accept jurisdiction and declare Grievance Committee proceedings exhausted. - Respondent moved for Summary Dismissal on grounds of lack of jurisdiction ratione temporis and ratione materiae, and that entry-request claims are unripe. - A Motion for Summary Dismissal suspends the period for answering the Application; current proceedings were limited to admissibility. ### FACTUAL BACKGROUND - Applicant employment and post-retirement roles: - Employed by the Fund for several decades; retired in 2008. - In 2017 Applicant was recruited to advise a Member Country and attended at least the 2018 and 2019 IMF-World Bank Spring Meetings. - Applicant serves as an advisor to the Governor of the National Bank of the Member Country. - Relationship with Complainant: - Applicant states a consensual, “on-again-off-again romantic affair” with the Complainant between 2010 and 2020. - Last seen: January 2020. Last communication: November 2020. - Entry ban imposed April 13, 2021: - Fund notice stated Complainant reported Applicant had “repeatedly sexually harassed her” and that Applicant was barred from entering Fund Headquarters “for any reason.” - Notice particulars included deactivation of retiree badge and placement on Fund Headquarters’ do not admit list; potential referral to Metropolitan Police Department of Washington, DC, the Federal Bureau of Investigation, [the Member Country’s] Police and UN security officials covering [the Member Country] if further reports received. - The notice did not request Applicant’s response; record shows no response at that time. - Applicant’s responses, March–May 2022: - March 17, 2022: Applicant wrote to the Managing Director asserting the entry ban was “unduly harsh” and imposed without due diligence; requested restoration of right to enter Fund HQ as a Member Country delegate and offered a virtual meeting with the Ethics Officer and Ombudsperson. - April 6, 2022: Director for Corporate Services and Facilities reiterated access restricted due to credible concerns and denied in-person attendance at the Spring Meetings; allowed remote attendance as part of [the Member Country] delegation. - May 12, 2022: Assistant General Counsel replied that “Maintaining security of its premises is a fundamental duty of the Fund, and entry into the Fund’s premises is not a right” and described avenues for remote participation and an exceptional-access request process. - May 16, 2022 (per Applicant): Applicant’s counsel spoke with Assistant GC who reportedly stated Fund did not have a World Bank-style flag system and was “reconsidering retiree access generally”; Respondent does not dispute this account in the Motion. - Proposed entry-request protocol and Fund response, June–July 2022: - June 7, 2022: Applicant’s counsel submitted a proposed six-point protocol including timelines (ten (10) working days for Security to decide), evidentiary standards (preponderance of evidence), right to present Applicant’s side, and appeal to HRD Director if denied. - July 20, 2022: Assistant GC rejected the protocol and offered two alternative approaches, including Option 1 — Request by a Member Country requiring: - provision of date, time and location of the meeting(s) in Fund premises; - identification of departments and relevant Fund staff attending; - explanation why in-person participation at the Fund is required and cannot be virtual or outside the Fund; - names and titles of [Member Country] authorities in the delegation; - such request must be signed and transmitted by an authorized, high-ranking official of the National Bank of [the Member Country], not by [Applicant], and delivered no later than 15 days before the intended meeting date. - Absent a positive written response authorizing access, Applicant would not be allowed to enter Fund premises. ### KEY EXCHANGES AND CHRONOLOGY (selected) - August 18, 2022: Applicant’s counsel informed Assistant GC that "the Fund’s position is not acceptable to my client..." and requested clarification on whom an administrative review request should be directed to. - September 5, 2022: Governor of the National Bank of the Member Country wrote to the Managing Director requesting expedited arrangements for Applicant’s entry ahead of the 2022 Annual Meetings and described Applicant as “a former senior Fund official” and “an esteemed member of [the Member Country’s] delegation.” - September 20, 2022: Applicant was registered as an accredited representative of the Member Country to attend the 2022 Annual Meetings (to be held in Washington, D.C., from October 10-16, 2022). - October 10-16, 2022: Applicant states he was forced to remain outside Fund premises during Annual Meetings because the Fund had not responded to the Governor’s or counsel’s letters. - November 10, 2022: Fund’s Secretary replied on behalf of the Managing Director that "the restrictions regarding [Applicant’s] access to the Fund Headquarters Buildings remain in place" and that "this matter was handled fully in accordance with how the Fund addresses such cases." - November 21, 2022: Assistant GC characterized the November 10, 2022 letter "not an appealable 'administrative act or decision'; rather, it was 'merely a factual statement that there has been no change to the restrictions regarding [Applicant’s] access to IMF Headquarters,' of which Applicant had been notified on April 13, 2021." - January 10, 2023: Applicant filed a Grievance with the Grievance Committee and simultaneously filed the Application with the Tribunal. - February 3, 2023: Fund requested Grievance Committee proceedings be stayed "pending a final decision from the Tribunal in the related case"; parties confirmed the stay on January 18 and 19, 2024. ### REQUESTED RELIEF BY APPLICANT - Rescission of the entry ban as arbitrary and capricious, or alternatively an order requiring a Fund review conforming to WBAT jurisprudence. - Compensation in the amount of $300,000, plus any related tax allowance, as compensatory, moral and intangible damages. - Reimbursement of all fees and costs incurred. - All other relief the Tribunal deems just and appropriate. ### RESPONDENT’S ADMISSIBILITY CONTENTIONS - Seeks summary dismissal for: - lack of jurisdiction ratione materiae: provision or deactivation of a retiree badge is not an appealable individual or regulatory decision affecting terms and conditions of Fund employment. - lack of jurisdiction ratione temporis: Applicant failed to contest the April 13, 2021 entry ban within six months; Applicant waited until January 2023. - ripeness: no entry request was submitted in conformity with the protocol communicated July 20, 2022. - Affirms broad Fund discretion to revoke access based on security considerations and that access is not an absolute right, especially for non-current staff. ### APPLICANT’S ADMISSIBILITY CONTENTIONS - Argues Respondent has not met the Tribunal’s “clear inadmissibility” standard for summary dismissal. - Asserts Tribunal review is available over Fund efforts to control access where no evidence of threat exists. - Asserts retiree status confers jurisdiction ratione personae; jurisdiction ratione materiae exists based on Applicant’s current duties as representative of a Member State, disciplinary grounds, and customary retiree rights. - Asserts timeliness: Applicant timely contested the entry ban as recast on May 12, 2022 (or July 20, 2022) and contends exceptional circumstances excuse any delay. - Seeks denial of the Motion and an award of costs in the amount of $4,500. ### STANDARD FOR SUMMARY DISMISSAL (Rule XII) - Rule XII permits dismissal if the application is “clearly inadmissible” (Rule XII, paragraph 1). - Tribunal applies a high bar: dismissals are for applications “clearly irreceivable or devoid of merit” to protect applicants’ right to be heard. - Where admissibility issues cannot be resolved without consideration of the merits, a motion for summary dismissal must fail. - Respondent does not dispute jurisdiction ratione personae (retiree qualifies as “member of the staff” under Article II(2)(c)(i)). ### JURISDICTION RATIONE MATERIAE - Statutory thresholds: - Article II, Section 1(a): Tribunal competent to hear applications by a member of the staff challenging the legality of an administrative act adversely affecting him. - Article II, Section 2(a): “administrative act” means any individual or regulatory decision taken in the administration of the staff of the Fund. - Respondent’s position: - Disabling of retiree badge and entry ban not an administrative act; no binding Fund rules on providing/disabling building access to retirees cited beyond an Administrative Manual FAQ. - Reliance on D’Aoust precedent that a practice not distilled into a rule is not a regulatory decision. - Tribunal observations: - Absence of a specific rule should not automatically deny a Fund retiree opportunity to be heard; access as a retiree has a nexus to terms and conditions of employment because retiree badge derives from employment. - Denying recourse where access is restricted based on an accusation of misconduct by a current staff member would conflict with the right to be heard. - WBAT jurisprudence: - Both parties relied on World Bank Administrative Tribunal (WBAT) cases (Mwake Decision No. 318 (2004), Q Decision No. 370 (2007), CR (No. 2) Decision No. 582 (2018), Kobli Decision No. 588). - Tribunal finds WBAT jurisprudence informative but not binding or fully persuasive given differing statutory and institutional frameworks. - Tribunal conclusion: - The entry ban placed on Applicant constitutes an administrative act under Article II of the Tribunal’s Statute. - Therefore, the Tribunal has jurisdiction ratione materiae. - This conclusion does not confer a right to enter Fund premises on retirees nor limit Fund discretion on security measures; it establishes competence to hear claims by a retired staff member concerning access restrictions. ### JURISDICTION RATIONE TEMPORIS (timeliness and exhaustion) - Governing provisions and principles: - Article V(1): an application may be filed only after the applicant has exhausted all available channels of administrative review when the Fund has established channels. - Article VI(1): a three-month limit for filing to the Tribunal after exhaustion of administrative review; prior exhaustion must be timely (e.g., six-month timeline for staff grievances to the Grievance Committee). - Tribunal may consider “exceptional circumstances” in assessing timeliness. - Possible administrative acts and dies a quo identified: - April 13, 2021 original entry ban notice. - May 12, 2022 Assistant GC communication offering “exceptional access” for “compelling circumstances.” - July 20, 2022 Assistant GC communication articulating detailed protocol including 15-day Member Country request requirement. - November 10, 2022 Fund Secretary’s response that restrictions remain in place. - Tribunal’s assessment of dies a quo: - April 13, 2021: Applicant fully aware on that date; grievance would have been due on or around October 13, 2021 if April 13, 2021 were the dies a quo. - May 12, 2022: a later formulation; grievance would have been due by November 12, 2022 if this were the dies a quo. - July 20, 2022: considered the final formulation of the initial entry ban and thus a separate administrative act; filing a Grievance on January 10, 2023 was within six months of July 20, 2022. - Tribunal conclusion on ratione temporis: - The Assistant GC’s communication of July 20, 2022 served as the operative dies a quo for filing a Grievance. - Applicant filed his Grievance within six months of July 20, 2022; consequently, the Grievance was timely. ### CONCLUSIONS, ORDERS, AND PROCEDURAL DIRECTIONS - The Tribunal finds Respondent has not met the “high bar” under Rule XII to obtain summary dismissal without a full merits exchange when admissibility cannot be resolved without merit consideration. - Orders and invitations: - The Fund’s Motion for Summary Dismissal is denied. - Given the parties’ mutual agreement to stay Grievance Committee proceedings pending a final decision of the Tribunal, the parties are invited to advise the Tribunal within 30 days of notification of this Judgment whether they choose to avail themselves of Article V, Section 4, of the Tribunal’s Statute: “For purposes of this Statute, all channels of administrative review shall be deemed to have been exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal.” - Legal fees and costs: - Applicant submitted a Request for Costs on January 17, 2024; Respondent filed Comments on January 25, 2024. - Tribunal deferred decision on legal fees and costs until the merits phase. ### DECISION (unanimous) - The Administrative Tribunal of the International Monetary Fund unanimously decides that: 1. The Motion for Summary Dismissal of the Application of “YY” is denied. 2. The parties are invited to advise the Tribunal within 30 days of notification of this Judgment as to whether they agree to submit the dispute directly to the Tribunal, pursuant to Article V, Section 4, of the Tribunal’s Statute. *Administrative Tribunal of the International Monetary Fund judgment, Washington, D.C., June 7, 2024.* ### INTRODUCTION ........................................................................................................... ### j2024-3 - INTRODUCTION ### INTRODUCTION - Tribunal composition: Judge Nassib G. Ziadé (President), Judges Maria Vicien Milburn and Andrew K.C. Nyirenda, pursuant to Article VII, Section 4 of the Tribunal’s Statute. - Parties and representation: - Applicant: “YY”, a retired staff member of the Fund; counsel: Peter C. Hansen, J. Michael King, Francis E. Waliczek, Law Offices of Peter C. Hansen, LLC. - Respondent: International Monetary Fund; counsel: Evelyn Kachaje, Counsel, Administrative Law Unit, IMF Legal Department. - Central subject of the Application: challenge to the decision to ban Applicant’s entry to Fund Headquarters buildings following an allegation of sexual harassment by a Fund staff member. - Applicant’s principal claims in the Application: - Entry ban imposed without due process. - Fund publicized the entry ban within a Fund department, causing further harm. - The ban hampers Applicant’s post-Fund career. - Procedural posture: - Applicant filed the Application concurrently with filing a Grievance with the Fund’s Grievance Committee and asks the Tribunal to accept jurisdiction and declare Grievance Committee proceedings exhausted. - Respondent moved for Summary Dismissal on grounds of lack of jurisdiction ratione temporis and ratione materiae, and that entry-request claims are unripe. - A Motion for Summary Dismissal suspends the period for answering the Application; current proceedings are limited to admissibility. ### FACTUAL BACKGROUND - Caveat: Pleadings on the merits suspended while the Motion is decided; summary reflects available key facts. A. Applicant’s Fund employment, 2008 retirement, and subsequent work - Applicant employed by the Fund for several decades in various capacities; retired in 2008. - In 2017 Applicant was recruited to advise a Member Country and attended at least the 2018 and 2019 IMF-World Bank Spring Meetings. - Applicant serves as an advisor to the Governor of the National Bank of the Member Country. B. Applicant’s relationship with a Fund staff member, 2010-2020 - Applicant states a consensual, “on-again-off-again romantic affair” with the Complainant between 2010 and 2020. - Last seen: January 2020. Last communication: November 2020. C. Fund’s imposition of an entry ban on Applicant in April 2021 - On April 13, 2021, Fund notified Applicant that the Complainant reported Applicant had “repeatedly sexually harassed her” and that Applicant was barred from entering Fund Headquarters “for any reason.” - Notice (e-mail from Chief of Headquarters Security, copied to Ethics Office and Administrative Law Unit; subject “Sexual harassment allegation”) states in part: - “[T]he staff member reported that she has, on numerous occasions, asked you in very clear terms to stop contacting her and you have ignored those pleas and have continued to pursue her.” - “your name has been placed on Fund Headquarters’ do not admit list. This means that your retiree badge has been deactivated and you will not be permitted entry into Fund Headquarters for any reason, including as a guest or member of a delegation.” - If further reports are received, the Fund will provide the Complainant with contact information for Metropolitan Police Department of Washington, DC, the Federal Bureau of Investigation, [the Member Country’s] Police and UN security officials covering [the Member Country]. - Advice regarding use of an external Staff Federal Credit Union branch. - The notice did not request Applicant’s response; the record shows no response at that time. - Applicant notes the no-access flag’s impact was muted in 2021 due to pandemic lockdowns. D. Applicant’s initial responses to the entry ban, March-May 2022 - IMF and World Bank resumed in-person Spring and Annual (Fall) Meetings in 2022. - March 17, 2022: Applicant wrote to the Managing Director asserting the entry ban was “unduly harsh” and imposed without due diligence, discovery, or “the standard Fund practice of following up with the accused person.” Requested restoration of right to enter Fund HQ as a Member Country delegate and offered a virtual meeting with the Ethics Officer and Ombudsperson. - April 1, 2022: Applicant forwarded March 17 letter to Ethics Officer and Ombudsperson reiterating views and request. - April 6, 2022: Director for Corporate Services and Facilities responded: - Reiterated that access restricted in response to credible concerns raised by a current staff member, that concerns persist and warrant continued access restriction. - Applicant “unable to grant you in-person attendance at the Spring Meetings. As part of the delegation of [the Member Country] you may, however, attend the Spring Meetings remotely.” - April 22, 2022: Applicant’s counsel wrote to HRD Director, Head of Internal Investigations, and Chief of Headquarters Security asserting the entry ban was unsupported and damaging to “the official interests of a Member State”; requested removal of the entry flag or a fair investigation. - May 12, 2022: Assistant General Counsel replied to April 22 letter: - “Maintaining security of its premises is a fundamental duty of the Fund, and entry into the Fund’s premises is not a right.” - Noted Applicant did not articulate a business need that could not be achieved through alternative means; Applicant was permitted to attend Spring meetings remotely. - Going forward, Applicant may attend meetings remotely or arrange meetings outside Fund premises; Fund prepared to discuss alternative meeting modalities with Member Country authorities. - For “compelling circumstances” warranting exceptional access, Applicant may submit a request to the Assistant GC specifying and providing justification sufficiently in advance for assessment. - May 16, 2022 (per Applicant’s account): Applicant’s counsel spoke with Assistant GC who reportedly stated Fund did not have a World Bank-style flag system and was “reconsidering retiree access generally”; reportedly “refused direct recourse to the Tribunal because the facts of the matter were unknown” but “welcomed” submission of a proposed protocol for requesting entry. Respondent does not dispute this account in the Motion. E. Discussion of specific entry request protocols, June-August 2022 - June 7, 2022: Applicant’s counsel submitted a proposed six-point protocol for entry requests with timelines, criteria, right of response, and administrative review: 1. [Applicant] may present a request for entry at any time. Security shall have ten (10) working days to review and decide on the request. If Security does not timely respond, the HRD Director shall permit entry unless Security within three (3) days shows good cause not to do so; 2. Decisions on entry requests: (i) will apply only a physical-threat assessment, (ii) will not presume any threat, (iii) will not accept bare allegations of a threat, (iv) will require a preponderance of evidence of a threat, and (v) will first allow [Applicant] to present his side of the story; 3. Any official document by any governmental entity of a Member State (e.g. [the Member Country]) requesting, stating a need for, or indicating an expectation of [Applicant’s] presence on Fund premises at a given time will be deemed an official request by the Member State for his presence; 4. Any entry will be predicated on a formal understanding that [Applicant] will avoid contact with [the Complainant] while on the Fund’s premises, with no breach occurring in the event of: (i) incidental, inadvertent or official interaction, or (ii) mere proximity unless sought by [Applicant]; 5. The substance of any complaint received by the Fund about [Applicant’s] presence will be promptly transmitted to him for comment, and Security will thereafter weigh the accusation, his defense, and any other evidence to determine if a breach as defined above occurred; and 6. Any finding of a breach by [Applicant] will result in Security advising him whether his eligibility for entry has changed, in what way, and for how (reasonably) long, with any such change or denial of entry appealable to the HRD Director per the administrative review rules. - Applicant’s counsel asked Security to conduct an initial review under those standards; emphasized Applicant’s willingness to avoid contact and his need to serve his new employer. - July 10 and July 20, 2022: Applicant’s counsel followed up after over a month without response. - July 20, 2022: Assistant GC rejected the proposed protocol and presented two alternative approaches, elaborating on the Member Country request option: - Fund cannot accommodate protocol as it “creates an erroneous presumption of a right of access” and “applies legal standards and procedures … neither applicable nor appropriate” given Fund’s security duties. - Reiterated entry into Fund premises is not a right. - Option 1 — Request by a Member Country: Fund willing to entertain official requests made by [the Member Country’s] authorities for [Applicant] to access Fund premises for official business. Any such request must: a. provide date, time and location of the meeting(s) in Fund premises; b. identify departments and relevant Fund staff attending; c. explain why [Applicant’s] participation must be in-person at the Fund and cannot be done virtually or outside the Fund; d. provide names and titles of [Member Country] authorities in the delegation; - Such request must be signed and transmitted by an authorized, high-ranking official of the National Bank of [the Member Country], not by [Applicant], and delivered no later than 15 days before the intended meeting date. - Absent a positive written response authorizing access, Applicant will not be allowed to enter Fund premises. F. Member Country request and further exchanges, September-November 2022 - (Content listing shows this section exists; the provided excerpt ends before its substance.) ### PROCEDURAL HISTORY - The table of contents identifies sections on procedural history, procedure before the Tribunal (including requests for anonymity, document production, oral proceedings), summary of parties’ principal contentions, consideration of admissibility, conclusions, legal fees and costs, and decision. - Current proceedings limited to the Motion for Summary Dismissal and admissibility. ### PROCEDURE BEFORE THE TRIBUNAL - Identified matters include: - Applicant’s request for anonymity (see section A). - Applicant’s requests for production of documents (see section B). - Applicant’s request for oral proceedings (see section C). - (Detailed pleadings suspended pending decision on admissibility.) ### SUMMARY OF PARTIES’ PRINCIPAL CONTENTIONS A. Applicant’s principal contentions on the merits - Applicant alleges lack of due process, improper publicity of the ban within a Fund department, and interference with post-Fund career opportunities. B. Respondent’s principal contentions on admissibility - Respondent contends Tribunal lacks jurisdiction ratione temporis and ratione materiae and that Applicant’s entry-request claims are unripe. C. Applicant’s principal contentions on admissibility - Applicant seeks Tribunal jurisdiction and asks that any Grievance Committee proceedings be declared exhausted. ### CONSIDERATION OF THE ADMISSIBILITY OF THE APPLICATION - The Tribunal frames legal thresholds and addresses Respondent’s arguments under identified headings: A. The “clearly inadmissible” standard for summary dismissal. B. Whether Respondent has shown the Application is “clearly inadmissible” for lack of jurisdiction ratione materiae, addressing: (1) Whether disabling of Applicant’s retiree badge or the entry ban constitute an administrative act; (2) Applicability of WBAT jurisprudence in determining jurisdiction ratione materiae; (3) The Tribunal’s conclusion on jurisdiction ratione materiae. C. Whether Respondent has shown the Application is “clearly inadmissible” for lack of jurisdiction ratione temporis, addressing: (1) What administrative acts Applicant contests and whether the Application was timely filed, with subparts: (a) The original entry ban notice of April 13, 2021; (b) The Assistant GC’s communication of May 12, 2022; (c) The Assistant GC’s communication of July 20, 2022; (2) The Tribunal’s conclusion on jurisdiction ratione temporis. - (The table of contents indicates the Tribunal reaches conclusions on these questions; the excerpt includes factual and procedural record relevant to the admissibility analysis but does not record the Tribunal’s rulings in the provided text.) ### CONCLUSIONS OF THE TRIBUNAL; LEGAL FEES AND COSTS; DECISION - The table of contents shows final sections titled “CONCLUSIONS OF THE TRIBUNAL,” “LEGAL FEES AND COSTS,” and “DECISION” concluding the Judgment No. 2024-3; substantive conclusions and orders appear later in the Judgment beyond the provided excerpt. *Administrative Tribunal of the International Monetary Fund — JUDGMENT No. 2024-3, “YY”, Applicant v. International Monetary Fund (Admissibility of the Application).* ### 2. Request by [Applicant] ### 2. Request by [Applicant] ### Access request framework and Fund discretion - The Fund stated that in the absence of a request from a member country for official business, circumstances giving [Applicant] a need for access to Fund premises are speculative, but did not rule out "compelling circumstances" that may warrant exceptional access. - [Applicant] may submit a request providing justification and "including details on the date, time, location of and with whom any meetings to be held at HQ, sufficiently in advance" so the request can be assessed. - The Fund will assess whether such requests "warrant consideration by others." - The Fund emphasized that decisions on entry requests are "at the sole discretion of the Fund, based on its business needs and security considerations at the relevant time." - Only written responses confirming that [Applicant] may enter Fund premises "will serve as valid means of authorization" for access. ### Key exchanges and chronology (selected) - August 18, 2022: Applicant’s counsel informed the Assistant GC that "the Fund’s position is not acceptable to my client..." and requested clarification on whom an administrative review request should be directed to. - Summer 2022: Applicant asserts he "learned through contacts" that Fund staff had been informed that [Applicant] had been banned from entering the Fund’s premises. - September 5, 2022: The Governor of the National Bank of the Member Country wrote to the Fund’s Managing Director requesting expedited arrangements for Applicant’s entry ahead of the 2022 Annual Meetings, stating among other points that: - "[Applicant] is a former senior Fund official" and "an esteemed member of [the Member Country’s] delegation to the Fund." - "It appears that [Applicant] has been blocked from entry onto the Fund’s premises for reason unknown to me..." - The Governor requested "all needed arrangements that are necessary for [Applicant’s] participation" for the Annual Meetings 2022. - September 7, 2022: The Assistant GC replied to Applicant’s counsel that the Fund "makes no judgment about your client" and treated the matter as hypothetical absent an access request, stating "I consider this subject to be closed." - September 17 and 22, 2022: Applicant’s counsel forwarded the Governor’s request and the Applicant’s Annual Meetings registration and requested confirmation that [Applicant] "will be permitted to participate normally in activities, including on the premises of the Fund and Bank, like any other accredited representative" for October 10-16, 2022. - September 20, 2022: Applicant was registered as an accredited representative of the Member Country to attend the 2022 Annual Meetings (to be held in Washington, D.C., from October 10-16, 2022). - October 10-16, 2022: The Fund held its Annual Meetings as scheduled; Applicant states that because the Fund had not responded to the Governor’s or counsel’s letters, he "was forced to remain outside the Fund’s premises, at great inconvenience to [the Member Country] delegation." - November 10, 2022: The Fund’s Secretary replied on behalf of the Managing Director to the Governor, stating that "the restrictions regarding [Applicant’s] access to the Fund Headquarters Buildings remain in place" and that "this matter was handled fully in accordance with how the Fund addresses such cases." - November 14, 2022: Applicant’s counsel informed the Assistant GC that Applicant "intends to litigate the matter, and to vindicate his rights to due process and to traditional retiree access," and requested the Fund’s consent for direct recourse to the Tribunal. - November 21, 2022: The Assistant GC responded that the November 10, 2022 letter "was not an appealable 'administrative act or decision'; rather, it was 'merely a factual statement that there has been no change to the restrictions regarding [Applicant’s] access to IMF Headquarters,' of which Applicant had been notified on April 13, 2021," and described prospective litigation as "improper to threaten frivolous litigation in the absence of meritorious claims and contentions." - January 10, 2023: Applicant filed a Grievance with the Grievance Committee, simultaneously with his Application to the Tribunal. - February 3, 2023: The Fund requested that Grievance Committee proceedings be stayed "pending a final decision from the Tribunal in the related case." - January 18 and 19, 2024: Applicant and Respondent confirmed to the Tribunal that Grievance Committee proceedings had been stayed on February 3, 2023 by mutual agreement. ### Procedural posture before the Tribunal - January 10, 2023: Applicant filed the Application with the Tribunal; Application transmitted to Respondent on January 12, 2023. - February 10, 2023: Respondent filed its Motion for Summary Dismissal pursuant to Rule XII of the Tribunal’s Rules of Procedure; Respondent supplemented the Motion on February 16, 2023, and it was transmitted to Applicant on February 17, 2023. - March 20, 2023: Applicant filed an Objection in opposition to the Motion; Applicant supplemented the Objection on March 27 and 31, 2023; the Objection as supplemented was transmitted to Respondent on March 31, 2023. - January 12, 2024: The Tribunal notified the parties that it would defer disposition of Applicant’s requests for production of documents (Rule XVII) and Applicant’s request for oral proceedings (Rule XIII) because Respondent did not address those requests in its Motion and Applicant did not address them in his Objection. - January 12, 2024: The Tribunal requested Applicant to submit documentation of costs incurred in responding to the Motion; Applicant filed a Request for Costs on January 17, 2024; Respondent commented on January 25, 2024; Respondent’s comments were transmitted to Applicant on February 5, 2024. ### Tribunal decision on anonymity - Applicant requested anonymity, arguing the entry ban "logically implies misconduct, a security threat, or moral turpitude" and that publication of his name "would harm [Applicant] and gravely undermine any relief granted" for "his lost reputation and professional standing." - Respondent opposed anonymity, asserting the Motion "is a pure question of law" and that Applicant had not shown "good cause" for anonymity; Respondent characterized the entry ban as imposed "not as a disciplinary measure ... but as a security measure." - The Tribunal applies Rule XXII, para. 4 and has interpreted "good cause" restrictively, historically granting anonymity in three circumstances: (i) challenges to performance assessments; (ii) cases involving allegations of staff misconduct; and (iii) where the health of the applicant is at issue. - The Tribunal observed that the Fund’s notice of Applicant’s entry ban "expressly stated that Applicant was alleged to have engaged in repeated sexual harassment" and that the notice "threatened potential referral to law enforcement authorities in multiple jurisdictions." - The Tribunal found that granting anonymity is appropriate to protect those against whom "untested allegations of misconduct have been lodged" and cited prior cases where anonymity was granted for similar reasons. - Given that the entry ban was based on allegations that, if established, would amount to serious misconduct, the Tribunal granted Applicant’s request for anonymity and communicated this decision on January 12, 2024. ### Parties’ principal contentions (summary) - Applicant’s principal contentions on the merits: - "The primary question in the present case is whether the Fund owes due process to [Applicant] regarding the entry ban, and whether that ban has a reasonable, non-arbitrary basis." - World Bank Administrative Tribunal (WBAT) precedents on the use of entry bans "present fundamental tenets of due process in international administrative law" and such standards should be adopted by the Fund and the Tribunal. - The Fund "has wronged Applicant by denying him due process," including by conflating misconduct and security concerns; presuming allegations to be true despite lack of evidence; denying any chance to be heard; and "violated the contract and terms of appointment by which [Applicant] holds retiree status." *Source: j2024-3 - 2. Request by [Applicant]* ### 4. The Fund barred Applicant from Headquarters under the pretext of “security” without ### j2024-3 - 4. The Fund barred Applicant from Headquarters under the pretext of “security” without ### Applicant’s asserted violations and requested relief - Alleged substantive findings: - The Fund barred Applicant from Headquarters under the pretext of “security” without a reasonable basis to impose the ban, let alone to maintain it after the Complainant’s reassignment from Headquarters. (para. 4) - The Fund’s internal deliberations about Applicant’s entry ban did not meet the minimum requirements of due process: written notification and the right to reply. (para. 5) - The Fund caused extreme harm to Applicant by broadcasting his entry ban within his former Department without justification. (para. 6) - Relief sought by Applicant (para. 7): - a. Rescission of the entry ban as arbitrary and capricious, or, if not granted, an Order requiring a Fund review of the entry ban fully conforming to the rules and principles articulated in the jurisprudence of the WBAT. - b. Compensation in the amount of $300,000, plus any related tax allowance, as compensatory, moral and intangible damages for the Fund’s imposition, maintenance, and publication of the entry ban and denials of due process. - c. Reimbursement of all fees and costs incurred by Applicant in this matter. - d. All other relief that the Tribunal deems just and appropriate. ### Respondent’s principal contentions on admissibility - Summary dismissal sought on grounds of jurisdiction and ripeness (Section B): - 1. Respondent seeks summary dismissal of the Application for lack of jurisdiction ratione materiae and ratione temporis as well as lack of ripeness. (B.1) - 2. Lack of jurisdiction ratione materiae: the provision or deactivation of a retiree badge is not an appealable individual decision or a regulatory decision affecting terms and conditions of Fund employment; the entry ban placed long after employment ended did not affect Applicant’s terms of employment. (B.2) - 3. Lack of jurisdiction ratione temporis: Applicant failed to contest the April 2021 entry ban within six months, instead waiting until January 2023; no exceptional circumstances shown to excuse delay. (B.3) - 4. Access to Fund premises is not an absolute right and may be revoked based on the Fund’s security considerations; Fund discretion is broad, especially for persons who are not current staff. (B.4) - 5. Applicant’s claims regarding an exception to the entry ban are unripe because no entry request was ever submitted in conformity with the protocol communicated by the Assistant GC on July 20, 2022. (B.5) ### Applicant’s principal contentions on admissibility - Opposition to summary dismissal and jurisdictional assertions (Section C): - 1. None of the arguments for summary dismissal meets the Tribunal’s stringent standard of “clear inadmissibility.” (C.1) - 2. Tribunal review is available of the reasonableness of the Fund’s efforts to control access to its premises, particularly where there is no evidence of any threat to security; the Fund’s invocation of security concerns does not make review insuperable. (C.2) - 3. Retiree status confers jurisdiction ratione personae; Tribunal has jurisdiction ratione materiae based on Applicant’s “current duties” as a representative of a Member State, on disciplinary grounds, and on Applicant’s “legal and customary rights as a Fund retiree.” (C.3) - 4. Tribunal has jurisdiction ratione temporis: Applicant timely contested the entry ban as recast on May 12, 2022, and the Fund’s denial of an entry request under those terms; any delays excused by exceptional circumstances, including the Fund’s threats and attempts to thwart pursuit of relief. (C.4) - 5. The Member Country’s request for Applicant’s entry being insufficient goes to the merits, not jurisdiction. (C.5) - 6. Applicant seeks dismissal of the Motion and an award of costs in the amount of $4,500. (C.6) ### Standard for summary dismissal (Rule XII) - Legal standard and approach (paras. 51–55): - A motion for summary dismissal raises whether the application is “clearly inadmissible” under Rule XII of the Tribunal’s Rules of Procedure. (para. 51) - Rule XII, paragraph 1, permits the Tribunal to decide summarily to dismiss the application if it is clearly inadmissible. (para. 52) - The Tribunal has emphasized that Rule XII sets a high bar: dismissals are intended only for applications deemed “clearly irreceivable or devoid of merit” to protect applicants’ right to be heard and avoid premature cutting off of a full merits hearing. (paras. 53–54) - Summary dismissal also serves to shorten proceedings where inadmissibility is clear at the outset to conserve Tribunal and Respondent resources; recent precedent includes the Tribunal granting a motion where failure to exhaust administrative review made the case clearly inadmissible. (para. 54) - Respondent’s Motion asks dismissal without a full exchange of pleadings on the grounds of lack of jurisdiction ratione materiae and ratione temporis and ripeness; Respondent does not dispute jurisdiction ratione personae (retiree qualifies as “member of the staff” under Article II(2)(c)(i)). (para. 55) - Tribunal will address jurisdiction ratione materiae and ratione temporis; in light of conclusions on those, ripeness need not be addressed. (para. 56) ### Jurisdiction ratione materiae: whether badge disabling or entry ban is an “administrative act” - Statutory framework and definitions (paras. 57–58): - Article II, Section 1(a): Tribunal competent to pass judgment upon any application by a member of the staff challenging the legality of an administrative act adversely affecting him. (para. 57) - Article II, Section 2(a): “administrative act” means any individual or regulatory decision taken in the administration of the staff of the Fund. (para. 57) - Article II, Section 2(b): regulatory decision includes rules concerning terms and conditions of staff employment, including General Administrative Orders and the Staff Retirement Plan, but excludes Board of Governors resolutions. (para. 57) - Commentary explains “administrative act” is intended to encompass all decisions affecting terms and conditions of employment, including career, benefits, or other aspects of Fund appointment; to invoke Tribunal jurisdiction there must be a “decision” identified in the application. (para. 58) - Respondent’s arguments that the acts are not administrative (paras. 59–60): - Respondent asserts neither the disabling of the retiree badge nor the entry ban constitutes an administrative act affecting terms and conditions of employment; there are no binding Fund rules on providing or disabling building access badges to retirees. (para. 59) - The only reference cited is an Administrative Manual FAQ: retiring staff may apply for a retiree badge which grants them access to the Fund during business hours. (para. 59) - Respondent relies on D’Aoust precedent that a practice not distilled in a rule, GAO, handbook, or other published official paper does not constitute a regulatory decision. (para. 60) - Tribunal’s observations supporting potential jurisdiction (paras. 61–63): - Absence of a specific rule should not automatically deny a Fund retiree an opportunity to be heard; former staff should not have lesser rights than current staff to administrative review. (para. 61) - Applicant’s access as a retiree has a nexus to terms and conditions of his employment because but for his employment he would not have had a retiree badge. The Commentary’s expansive definition of “administrative act” supports inclusion of decisions impacting a retiree’s access to Fund premises. (para. 62) - Denying a retiree recourse where access is restricted based on an accusation of misconduct by a current staff member would conflict with the basic principle of the right to be heard; Commentary on Article III treats the right to be heard as generally applicable to decisions by international organizations without distinguishing current and retired staff. (para. 63) ### Applicability and weight of WBAT jurisprudence on access restrictions - Parties’ reliance on World Bank Administrative Tribunal (WBAT) cases (paras. 64–66): - Both parties agree the Tribunal’s consideration should be informed by WBAT jurisprudence in entry restriction cases; Assistant GC noted that jurisdiction ratione materiae “will be informed by persuasive jurisprudence from the World Bank Administrative Tribunal.” (para. 64) - Principal WBAT cases cited include Mwake (Decision No. 318, 2004), Q (Decision No. 370, 2007), and CR (No. 2) (Decision No. 582, 2018). Applicant argues these recognize jurisdiction to review entry bans imposed on former staff; Respondent argues WBAT finds jurisdiction only where flags are based at least in part on conduct during Bank employment. (para. 65) - WBAT jurisprudence summarized and contrasted (paras. 66–68): - Mwake: WBAT declined to find jurisdiction ratione materiae for a former employee’s challenge where limited access flags arose for reasons unrelated to his Bank employment (scholarship program); WBAT held jurisdiction requires alleging non-observance of contract of employment. (para. 66) - Q: WBAT found jurisdiction over a former employee’s challenge to “no access” and “no re-hire” flags where bans were placed as disciplinary measures based in whole or in part on conduct during employment; WBAT stated jurisdiction ratione materiae is found where a flag was entered as a disciplinary measure. (para. 67) - CR (No. 2): WBAT treated access restrictions imposed as disciplinary measures for misconduct as within jurisdiction. (para. 67) - Kobli (Decision No. 588): WBAT found lack of jurisdiction where applicant did not demonstrate how the incident related to any alleged violation of his rights as a former staff member. (para. 68) - Tribunal’s position on WBAT jurisprudence (paras. 69–70): - WBAT jurisprudence is not binding on the IMFAT; Article III of the IMFAT Statute requires application of the Fund’s internal law and generally recognized principles of international administrative law. (para. 69) - WBAT jurisprudence is not fully persuasive because it assesses the World Bank’s unique policy framework and its competence differs from the IMFAT’s competence; WBAT’s approach reflects a different jurisdictional orientation tied to the World Bank’s Statute and practice. (para. 69) - For example, WBAT has required the challenged decision to “relate significantly to the staff member’s contract of employment or terms of appointment” to have standing, reflecting the WBAT’s contractual focus, which differs from the IMFAT’s broader statutory language. (para. 70) *International Monetary Fund Administrative Tribunal consideration as set out in the cited sections of the application and the parties’ motions.* ### 71. In light of the above, the Tribunal finds that although Respondent is not incorrect in its ### j2024-3 - 71. In light of the above, the Tribunal finds that although Respondent is not incorrect in its ### Tribunal view on comparative jurisprudence (WBAT) - The Tribunal finds that Respondent’s understanding of the WBAT’s jurisprudence is not incorrect but: - WBAT jurisprudence is not binding and not persuasive in the particular circumstances of this case. - The WBAT is assessing the World Bank’s unique framework on access restrictions and is applying a standard in determining its jurisdictional competence that is different than the standard applied by the IMFAT. ### Jurisdiction ratione materiae - The Tribunal concludes that the entry ban placed on Applicant constitutes an administrative act under Article II of the Tribunal’s Statute. - Therefore, the Tribunal has jurisdiction ratione materiae. - The Tribunal notes Respondent’s assertions: - Security restrictions are a means by which the Fund may fulfill its “duty of care to the staff to provide a safe work environment”. - “[D]ue to the significance and importance of staff security, the discretion to impose access restrictions is broad.” - The Tribunal observes that those assertions go to the merits of the dispute and that its jurisdictional conclusion: - Neither confers a right on Fund retirees to enter Fund premises, nor limits the Fund’s discretion to take necessary security measures to protect Fund premises and the safety of staff. - Merely finds competence ratione materiae to hear claims brought by a retired Fund staff member concerning access restrictions placed in his file. ### Jurisdiction ratione temporis (timeliness and exhaustion of remedies) - Governing provisions and principles: - Article V(1) of the Tribunal’s Statute: “[w]hen the Fund has established channels of administrative review for the settlement of disputes, an application may be filed with the Tribunal only after the applicant has exhausted all available channels of administrative review.” - Prior exhaustion must be timely; example given: six-month timeline for staff grievances submitted to the Grievance Committee. - Article VI(1) of the Statute sets a three-month limit for individual challenges to the Tribunal: applications to be filed within “three months after all available channels of administrative review have been exhausted, or, in the absence of such channels, after the notification of the decision.” - The Tribunal may consider “exceptional circumstances” in assessing timeliness for exhaustion and for filing to the Tribunal. - Possible administrative acts identified in the case: - (a) Original entry ban notice of April 13, 2021: categorically stated no entry “for any reason”. - (b) Assistant GC’s letter of May 12, 2022: offered Applicant could submit a request for “exceptional access” based on “compelling circumstances”. - (c) Assistant GC’s letter of July 20, 2022: detailed two paths to request access — Applicant’s request for exceptional access or a Member Country request sent 15 days in advance of specific meetings — and specified information required. - (d) Fund Secretary’s response on the Managing Director’s behalf sent on November 10, 2022, following a Member Country request of September 5, 2022 for Applicant’s access to Annual Meetings in October 2022. - Assessment of each act and resulting dies a quo: - April 13, 2021 original entry ban: - Put Applicant on notice that retiree badge was “deactivated and [he would] not be permitted entry into Fund Headquarters for any reason, including as a guest or member of a delegation.” - Applicant was fully aware as of April 13, 2021 and had an opportunity to respond. - If April 13, 2021 is dies a quo, Applicant should have filed his Grievance with the Grievance Committee within six months (i.e., on or around October 13, 2021). Applicant filed the Grievance on January 10, 2023; absent exceptional circumstances, that would be untimely. - May 12, 2022 Assistant GC communication: - First instance where Fund provided possibility of an exception to the entry ban by offering “exceptional access” based on “compelling circumstances.” - This is a later formulation and a separate administrative act for admissibility purposes. - Using May 12, 2022 as dies a quo, Applicant should have filed a Grievance within six months—i.e., by November 12, 2022. Applicant failed to do so and, absent exceptional circumstances, the Grievance would be untimely. - July 20, 2022 Assistant GC communication: - Articulated the same “compelling circumstances” standard and added a detailed protocol for requesting access, including a 15-day advance Member Country request option and specified required information. - Considered the final formulation of the initial entry ban and therefore a separate administrative act for admissibility purposes. - Using July 20, 2022 as dies a quo, Applicant’s Grievance filed on January 10, 2023 was within six months and therefore timely. - Tribunal conclusion on ratione temporis: - The Assistant GC’s communication of July 20, 2022 revised the parties’ understanding of entry conditions and served as the operative dies a quo for filing a Grievance. - Applicant filed his Grievance within six months of July 20, 2022; consequently, the Grievance was timely. - In light of that conclusion, the Tribunal did not need to assess whether the Fund Secretary’s November 10, 2022 communication served as dies a quo. ### Conclusions, orders, and procedural directions - The Tribunal concludes Respondent has not met the “high bar” set by Rule XII for dismissal of an application before a full exchange of pleadings on the merits; when admissibility issues cannot be resolved without consideration of the merits, a motion for summary dismissal must fail. - Orders and invitations: - The Fund’s Motion for Summary Dismissal is denied. - Given the parties’ mutual agreement to stay Grievance Committee proceedings pending a final decision of the Tribunal, the parties are invited to advise the Tribunal within 30 days of notification of this Judgment whether they choose to avail themselves of Article V, Section 4, of the Tribunal’s Statute, which provides: “For purposes of this Statute, all channels of administrative review shall be deemed to have been exhausted when the Managing Director and the applicant have agreed to submit the dispute directly to the Tribunal.” - Legal fees and costs: - Applicant submitted his Request for Costs on January 17, 2024; Respondent filed responsive Comments on January 25, 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: 1. The Motion for Summary Dismissal of the Application of “YY” is denied. 2. The parties are invited to advise the Tribunal within 30 days of notification of this Judgment as to whether they agree to submit the dispute directly to the Tribunal, pursuant to Article V, Section 4, of the Tribunal’s Statute. --- _Source: https://www.imf.org/-/media/files/imfat/j2024-3.pdf_