## ADMINISTRATIVE TRIBUNAL OF THE INTERNATIONAL MONETARY FUND — ORDER No. 2020-1 ## Source details **Canonical URL:** [ADMINISTRATIVE TRIBUNAL OF THE INTERNATIONAL MONETARY FUND — ORDER No. 2020-1](https://www.imf.org/-/media/files/imfat/o2020-1.pdf) ## Other formats - [Markdown version](/-/media/files/imfat/o2020-1.pdf.md) - [Structured JSON version](/-/media/files/imfat/o2020-1.pdf.json) --- ### Introduction and subject matter - Applicant: Ms. “PP”; Respondent: International Monetary Fund. - Applicant filed an Application on August 12, 2019, challenging two decisions by the Director of the Human Resources Department (HRD): - Disciplinary decision: that Applicant “failed to afford . . . fair and reasonable treatment” to a G-5 household employee and “engaged in conduct that reflected adversely on the Fund,” in violation of Staff Handbook, Ch. 11.01 (Standards of Conduct), Annex 11.01.8 (Requirements for the Employment of G-5 Employees); disciplinary measure: a formal written reprimand (Staff Handbook, Ch. 11.02 (Misconduct and Disciplinary Procedures), Section 8.1(ii)), to remain in Applicant’s personnel file for three years. - Administrative decision: (a) directed Applicant to end the employment of a different G-5 employee who remains employed in Applicant’s household, and (b) stated the Fund would not support future G-5 visa applications by Applicant; HRD Director stated the decision was made “in the interests of the Fund” due to the “position communicated to [the Fund] by the [U.S.] State Department.” - Applicant filed a Second Request for Provisional Relief on November 26, 2019. Respondent filed a Response on December 11, 2019 and a Request for Reasonable Compensation pursuant to Article XV of the Tribunal’s Statute. Applicant filed a response to the Fund’s demand for costs on December 20, 2019. ### Background: Tribunal’s earlier Order No. 2019-1 and its legal framework - Prior proceeding: Ms. “PP”, Applicant v. International Monetary Fund, Respondent (Applicant’s Request for Provisional Relief and Respondent’s Motion to Dismiss in Part), IMFAT Order No. 2019-1 (October 10, 2019). - In Order No. 2019-1 the Tribunal: - Denied Applicant’s first request for provisional relief in two parts: (1) prohibiting the Fund from requiring the current G-5 employee’s dismissal during the pendency of the case; and (2) requiring the Fund to secure necessary visa actions by the State Department (e.g., an I94 renewal) to permit continued employment. - Reasoning highlights: - The essential requirement for provisional relief is a showing that “irreparable harm” will result in the absence of the relief sought (Order No. 2019-1, para. 39). - Applicant “had not shown that separation of the G-5 visa holder from her employment will result in ‘irreparable harm’ to Applicant.” (Order No. 2019-1, para. 40.) - Applicant had been on notice for more than a year that her current G-5 employee must leave her household and had ample opportunity to make alternate arrangements (Order No. 2019-1, para. 40). - Applicant could not assert provisional relief based on alleged “irreparable harm” to the G-5 employee because the Fund’s rules and the Tribunal’s Statute concern the employment relationship between the Fund and its own staff members and the Commentary on the Statute limits such relief (Order No. 2019-1, paras. 41–43). - The second prong (requiring the Fund to secure visa actions) was denied because it did not seek suspension of a decision contested in the Tribunal (Order No. 2019-1, para. 37). - Factual note in Order No. 2019-1: Fund asserted the household employee’s G-5 visa had expired in April 2017 but she remained in the United States under an I-94 Form valid until November 4, 2019; Tribunal “understands that the G-5 employee will be required to leave the United States by that date unless she has been granted a new G-5 visa” and that a new G-5 visa “would require that she find employment with a G-4 visa holder other than Applicant.” (Order No. 2019-1, para. 24.) - The pleadings before the Tribunal indicate the G-5 visa holder remains in Applicant’s employment. ### Applicant’s Second Request for Provisional Relief — claims and Tribunal analysis - Applicant’s Second Request (filed November 26, 2019) seeks “an Order that the Fund transmit the I-94 application to USCIS so that the U.S. Government can decide the issue of [the G-5 employee]’s visa.” - Applicant’s assertions: - The “U.S. Government has never issued a decision requiring [the G-5 employee]’s ouster.” - Applicant “believes that the U.S. Government will grant the visa.” - Applicant requests that the Fund’s decision to block the I-94 application be lifted and that the Fund be required to pass the application on to USCIS, asserting she “comes to the Tribunal asking only to have the Fund let the U.S. Government pronounce on [the G-5 employee]’s visa.” - Fund’s Response: - The Fund contends Applicant’s Second Request is “directly answered by the Tribunal’s ruling” in Order No. 2019-1 and “amounts to nothing more than an effort to re-litigate the matter.” - The Fund argues the Second Request, “in seeking an order compelling the Fund to take action on her employee’s behalf vis-à-vis the U.S. Government,” is no different from the earlier prong denied because it did not seek suspension of a decision contested in the Tribunal. - Communications from the Fund to Applicant’s counsel: - October 18, 2019: Fund advised it “cannot take steps to support or be involved in any way in the renewal of [the G-5 employee]’s I-94, as long as she remains in [Applicant]’s employ.” - Fund stated it would be “open to discussing a postponement of up to six weeks from the date of the Tribunal’s recent decision [i.e., Order No. 2019-1] denying provisional relief, to allow [the G-5 employee] to find alternative G-5 employment and leave [Applicant]’s employ,” if U.S. authorities renew the I-94. - November 22, 2019: Fund confirmed it “cannot take steps to support or be involved in any way in the renewal of [the G-5 employee]’s I-94,” unless the State Department “directly inform[s] us that they have changed their position and now support the renewal of [the G-5 employee]’s visa while she continues to be in the employ of [Applicant].” - Tribunal’s analysis and conclusions on the Second Request: - The Second Request closely resembles the second prong of the first request and suffers the same defects as the request denied in Order No. 2019-1. - Even assuming the Fund’s refusal to convey the I-94 application were “part and parcel” of the contested decision, the Second Request still fails because Applicant has not shown any material difference from the earlier request and has not met the essential requirement to show that “irreparable harm” will result without the relief (Order No. 2019-1, para. 39). - Applicant has not offered additional evidence establishing irreparable harm to herself or a basis to raise provisional relief on behalf of the G-5 employee. - Provisional relief is “an extraordinary measure” and the ordinary rule in Article VI, Section 4, of the Statute is that “the filing of an application shall not have the effect of suspending the implementation of the decision contested.” The Commentary on the Statute allows such measures only “if warranted by the circumstances of a particular case.” (Commentary on the Statute, p. 27; full quoted Commentary reproduced in Order.) - Principles supporting finality of Tribunal decisions (“promoting judicial economy and certainty among the parties”) counsel against re-opening questions already resolved by Order No. 2019-1. ### Respondent’s Request for Reasonable Compensation (Article XV) - Fund’s Request (submitted with its December 11, 2019 Response) invokes Article XV of the Tribunal’s Statute and alleges Applicant’s Second Request for Provisional Relief is “manifestly without foundation.” - Fund requests that costs associated with responding to the filing—and any future actions required to address ongoing efforts by Applicant to circumvent the Tribunal’s prior Order—“be borne by Applicant.” The Fund did not quantify such costs in its Request. - Article XV summary as quoted in the Order: - The Tribunal may order reasonable compensation by the applicant where it finds that: - the application was manifestly without foundation either in fact or under existing law, unless based on a good faith argument for an extension, modification, or reversal of existing law; or - the applicant intended to delay the resolution of the case or to harass the Fund or any of its officers or employees. - The amount awarded shall be collected by way of deductions from payments owed by the Fund to the applicant or otherwise, as determined by the Managing Director, who may, in particular cases, waive the claim of the Fund against the applicant. - Tribunal’s disposition of the Fund’s Request: - The Tribunal finds it unnecessary to resolve entitlement to compensation under Article XV at this stage. - The Tribunal defers decision on Respondent’s Request for Reasonable Compensation “until a later stage of the proceedings,” for example, in the context of rendering a Judgment on the merits of the Application. ### Orders and disposition - The Tribunal unanimously adopts the following decision: - 1. Applicant’s Second Request for Provisional Relief is denied. - 2. The Tribunal’s decision on Respondent’s Request for Reasonable Compensation is deferred until a later stage of the proceedings. - Signatories: - Catherine M. O’Regan, President - Andrés Rigo Sureda, Judge - Edith Brown Weiss, Judge - /s/ Catherine M. O’Regan, President - /s/ Celia Goldman, Registrar - Location and date of Order: Washington, D.C., January 13, 2020. --- _Source: https://www.imf.org/-/media/files/imfat/o2020-1.pdf_