2016-2018: Merit Systems Protection Board Appeal and Decision
2012-2015 | 2015-2016 | 2016-2018 | 2018-Now
On October 6, 2016, Sherry Chen filed an appeal of the wrongful employment termination decision to the Merit Systems Protection Board (MSPB).
MSPB is an independent quasi-judicial agency in the Executive Branch, established in 1979 to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by their management.
In Sherry Chen's case, the management agency is the Department of Commerce (DOC), which oversees the National Weather Service housed in the National Oceanic and Atmospheric Administration.
MSPB held a public hearing on Sherry Chen's appeal in Cincinnati, Ohio on March 14-15, 2017. In the hearing, DOC had to prove that the hostile action against Sherry Chen was warranted, and Sherry Chen would present evidence that it was not.
Despite the freezing temperature and biting winds during the MSPB hearing, dozens of concerned individuals of diverse background and from across the country, including Sherry Chen's colleagues at the National Weather Service, lent their warm and peaceful support inside and outside the courthouse.
Community organizations issued press releases and statements of support (Community and Public Responses). Both mainstream and Chinese-language media covered the 2-day event extensively, including live streaming of the event (Media Reports).
After two full days of testimonies, the hearing ended promptly at 4:00 pm on March 15. It was subsequently completed by video conference on March 28.
The wait for the MSPB decision required excruciating patience. It took 13 months for Chief Administrative Judge Michele Szary Schroeder to issue her verdict, but it was a blockbuster when it came out on April 23, 2018.
In her 135-page written decision, the judge agreed that Sherry is the “victim of gross injustice.” The judge ruled that DOC did not have cause to fire Sherry Chen and ordered the agency to (1) reinstate her employment at the National Weather Service and (2) pay her back pay plus benefits.
The judge completely rejected the DOC’s many allegations against Sherry Chen that arose from its scurrilous claim that she attempted to obtain secret information for an official in China.
In addition, the judge exposed the scandalous conduct by the DOC in the way it investigated Sherry Chen both before her arrest in 2014 and her subsequent termination in 2016. For example, the judge deemed it “inconceivable” in the way the DOC’s criminal investigators were selective and biased in producing their investigative reports. The judge also found it “troubling” that, before firing Sherry, DOC officials utterly failed to include in the DOC file a dozen sworn declarations from Sherry’s co-workers that were “clearly relevant” to the termination decision.
The judge excoriated DOC officials for "digging their heels in when it came time to support the decision they had made," observing that "Ms. Furgione and Admiral Devany seemed more concerned about being right than doing the right thing. Based on the unyielding nature of their testimony, I would not have been surprised if they rejected that 2 + 2 = 4."
The historical chance of a federal employee winning a MSPB appeal is less than 2%. Not only did Sherry Chen beat the odds and overwhelmingly won her appeal against DOC, the decision provided a strong indictment of the scandalous mishandling of Sherry Chen's case by DOC.
The MSPB decision arguably tops the verbal apology Judge James Parker gave Dr. Wen Ho Lee in 2000.
This is a major turning point in the Sherry Chen story. However, as what will follow shows, this is only the first step of the long journey to recover fairness and justice for Sherry Chen, the Asian American community, the nation’s institutions, and the treasured American values of justice and fairness.
The Sherry Chen story continues in the Post-MSPB Decision period from 2018 to now.
U.S. Courthouse where the MSPB hearing was held on March 14-15, 2017
Sherry Chen supporters in front of U.S. Courthouse in March 2017
Media interview of Sherry Chen
More Sherry Chen supporters
outside the U.S. Courthouse
Highlights of MSPB Decision
"After reviewing the evidence and testimony in this matter, I believe Ms. Chen's assertion [that she is the 'victim of a gross injustice'] is correct." page 105
"... the gross injustice was caused not by discrimination or retaliation, but by the agency's mishandling of the situation on a number of different levels as discussed throughout this decision." page 105
"In short, Ms. Furgione and Admiral Devany seemed more concerned about being right than doing the right thing. Based on the unyielding nature of their testimony, I would not have been surprised if they rejected that 2 + 2 = 4." page 102
"It is not my place nor is it necessary for me to the decide whether Ms. Furgione or Admiral Devany had a blinding desire to save face for the agency in light of the press coverage and the length of time that had passed since Ms. [Deborah] Lee first submitted her concerns to the security office, whether they felt Ms. Chen returning to the agency would embarrass or not reflect well on the agency's initial actions, whether their thought process was tainted by the dismissed criminal charges, or whether they simply did not have the competence or experience to impartially perform their respective roles as proposing and deciding officials in this matter." page 103
"Despite the obvious relevance to the events surrounding Ms. Chen's charged conduct, the agents [including Andrew Lieberman] decided not to prepare an MOI and the hand-written notes were not part of the materials the agency provided to Ms. Furgione or Admiral Devany." page 65
"MATERIALS EXCLUDED FROM AGENCY FILES. The agents [including Andrew Lieberman] unilaterally decided which interviews they would reduce to writing. They based their decision on whether the information gleaned from the interview was, according to them, material to the case. If the agents believed the information was material, the agents would transcribe the hand-written notes from an interview into a typed Memorandum of Investigation (MOI) and it would become part of the agency file; if they did not, the notes or information did not make it to the file... This is both puzzling and unfortunate." page 28-29
"NWS only turned the documents over to Ms. Chen after her counsel discovered their existence by chance. Admiral Devany could not offer any explanation as to why the agency did not provide him with any of these documents." page 29
Read the entire 135-page MSPB decision or download the file by clicking below:
Onsite Scenes at the U.S. Courthouse
March 14-15, 2017
Sherry Chen with supporters
inside and outside the U.S. Courthouse