Thursday, March 31, 2016

Sherry Chen's Dismissal is an Indictment of Racist Federal Government

An edited version of this blog was posted on Asia Times.

Last May, New York Times identified Sherry Chen as the person accused of spying for China and then wasn’t, as the federal prosecutor dropped the charges just one week before her case was to come to trial. Sherry’s friends and supporters thought that being free of criminal charges meant that she could go back to her job as a hydrologist for the National Weather Service (NWS).

Lo and behold, on September 4, 2015, Sherry received a letter from Laura Furgione, Deputy Director of NWS, informing her that she was being removed as an employee of NWS. In the document formally known as “Notice of Proposed Disciplinary Action (hereafter PDA), Furgione proposed removing her for “(1) Conduct demonstrating untrustworthiness; (2) Misrepresentation; (3) Misuse of Federal Government Database; and (4) Lack of Candor.” The document ran 20 pages in length.

Peter Zeidenberg, attorney with Arent Fox LLP based in Washington, was the defense counsel for Sherry; he submitted a memorandum dated October 2, 2015 addressed to Louis Uccellini, Director of NWS in response to the PDA. The memo ran 31 pages and provided a comprehensive rebuttal to all the points raised in the PDA.

Then in a half page memo with a date stamp of December 9, 2015, Director Uccellini wrote to Vice Admiral Michael Devany, stating that he cannot serve as an impartial “deciding official” on the PDA and asked to be relieved from this role. Devany is Deputy Under Secretary for Operations of National Oceanic and Atmospheric Administration (NOAA) and is Uccellini’s boss.

Uccellini’s short memo said he was provided with Furgione’s PDA and back-up material in the capacity of being the “deciding official.” He also heard an oral reply from Sherry and her attorney Zeidenberg along with the written material on October 9, 2015.

Then Uccellini made a curious statement in his memo, “Specifically, in 2014, I received a series of classified briefings from DOC’s Office of Security regarding this employee and matters related to this Notice of Proposed Removal. While I have tried to compartmentalize the additional information I learned during these briefings, I am unable to focus solely on the information and the charges in the Notice of Proposed Removal, the materials relied upon, and the employee’s response.”

Next, Furgione sent Sherry a second PDA, dated December 18, 2015 rescinding the first because Uccellini would not serve as an impartial deciding official. Other than stating that Vice Admiral Devany was now the deciding official, the second PDA was word for word identical to the first version. In response, Zeidenberg submitted the same rebuttal since the second version of the PDA added nothing and changed nothing from the original.

Devany’s decision on the PDA in the form of a letter dated March 10, 2016 addressed to Xiafen Chen was to remove her (Sherry) from Federal service. The reasons given in support of his decision basically followed the accusations as outlined in the PDA virtually uninfluenced by any of the arguments submitted by Zeidenberg. Devany’s letter did contain one curious statement: “much of your reply went to the now-dismissed criminal charges against you, which have no bearing on this matter.

Devany’s statement is hard to fathom. Either Zeidenberg missed reading the PDA and failed to respond accurately, or the PDA repeated some of the “now-dismissed criminal charges” as part of its case against Sherry, or Devany had made up his mind to dismiss Sherry and his general note was a way to sweep away the carefully crafted rebuttals by Sherry’s counsel and avoid having to deal in any degree of specificity.

Dr. Uccellini has a PhD in Meteorology from University of Wisconsin and is a self-confessed “weather geek.” He has authored more than 60 peer-reviewed articles, books and chapters on weather related topics. Among many awards and recognition, he was at one time the president of the American Meteorology Society.

When Uccellini assumed the leadership of NWS in 2013, outside observers praised the appointment as a welcome change from the usual practice of filling the post with retired military officers. He took over an organization riven with scandal, was accused of misappropriation of funds and marked by the abrupt retirement of his predecessor.

Ironically, he co-authored an acclaimed book titled “Northeast Snowstorms.” This January, the NWS forecasted a killer storm of historic proportions for the New York City area, which prompted the mayor Bill de Blasio to order the closing of roads and subways along with schools. One minor detail was amiss, the storm never happened. To his credit, Uccellini took responsibility for the “historic screw up” and admitted that the weather service needs to improve the way weather forecast is communicated to the public.

The National Weather Service is part of NOAA and its mission is to “provide weather, water and climate data, forecasts and warnings for the protection of life and property and enhancement of the national economy.” In other words, NWS keeps its eye on Mother Nature. The meteorologists in this organization watch the sky while the hydrologists monitor the rivers.

Sherry Chen was employed as a Hydrologist in the Ohio River Forecast Center. This office monitors the Ohio River basin including its many rivers and tributaries that flow into the 900-mile long river. This river system affects approximately 25 million lives. A major part of Sherry’s duty is to construct and continually improve a computer model of the river to facilitate making accurate forecasts of the water flow on the river.

Sherry’s modeling work is based on a software package provided by the Hydrologic Engineering Center – River Analysis System (HEC-RAS). The Center belongs to the Army Corp of Engineers (ACE) and is well known world wide for its technical expertise on all things related to water, and HEC-RAS is just one of a large family of software programs the Center has constructed and made available for general use.

In fact the river forecasting centers belonging to NWS work closely with the ACE. The centers perform the forecasting while the Corp of Engineers control the dams and levees that can prevent or at least mitigate the impact of the river overflow. One instance where the collaboration did not pan out so happily was the Nashville flood of 2010 when the Cumberland River overflowed its banks, and 31 lives were lost along with approximately $2.3 billion in damages. It was a natural disaster that rivaled Katrina of New Orleans in severity.

The Cumberland is a tributary of the Ohio and Tom Adams, the senior hydrologist of the Ohio River Forecasting Office, led the forecasting effort and Sherry was his lead modeler. Adams and his group could see that the torrential downpour was leading to the threat of serious flooding. He tried to warn the ACE office in charge of this region. Finally on May 2, a Sunday morning, he was able to hold a conference call including Deborah Lee who was in charge of ACE office. He warned Lee of the impending threat but he felt that Lee was distracted and did not sensed the urgency of the situation.

The river crested in the evening of May 3 and all hell broke loose on May 4. The press severely criticized the ACE for poor handling of this matter including mismanagement of the dams in the affected area and should have done more to prevent flooding. Lee telephoned Adams to scream at him alleging that everyone in his office was incompetent. Adams explained to me, “Debbie Lee was really upset and worried about losing her job. She really got me mad. If she had been standing in front of me, I would have punched her.

Since that incident, the working relationship between the forecasting center and Lee’s group in ACE turned sour. Adams speculated that the success of Sherry’s modeling most likely became an added source of embarrassment to Lee. Earlier in her career, Lee had also worked as a hydrologist at the same river forecasting center. Lee was the person that originated the accusation of Sherry being a spy for China.

Adams having seen all the discovery material related to the original criminal charges volunteered to me that emails from Debbie Lee showed clear indications of racial profiling as alleged by Zeidenberg in his memo in defense of Sherry. “All the charges leveled at Sherry were all bullsh*t,” Adams said.

In Zeidenberg’s memo, one the sections had a heading that read: “Deborah Lee’s suspicions of Ms. Chen were based on ignorance and racial profiling.” The concluding sentence of this section was, “These two concerns—one based on Ms. Chen’s national origin, one based on a erroneous factual understanding—are what triggered this entire investigation and a nightmare for Ms. Chen that is still ongoing.

In his letter of dismissal, Devany’s response was curt: “That you are of Chinese descent is irrelevant. That you reached out to her (Deborah Lee) at the behest of an official in the Chinese government is not irrelevant.” The official was a vice minister who asked Sherry how the U.S. finance the repair of old dams. Sherry, not sensing Lee’s hostility towards her, asked her about where such publicly available information could be found. Her query gave Lee cause to report her to the DOC Office of Security.

Sherry learned of the National Inventory of Dams (NID) from a colleague at her center. According to Adams, everything in the NID was public information and no disclosure could possibly represent a threat to national security. However, the fact that Sherry did borrow a password to download some data from the NID, even though there was no evidence that she shared the information with anyone served as a major justification to dismiss her. Adams said that it would have been natural for Sherry to assume that the NID data would be relevant to her modeling work and only upon examination of the actual data would she discover that the data was “garbage.” (Ironically, since April 2015, most of the NID data is freely available to the public without any password.)

Tom Adams worked with Sherry Chen for more than five years before leaving the Ohio River Forecasting Center in February 2013--before Sherry Chen was arrested. Having left the service, he did not feel the constraint of a current employee and spoke to me freely. He maintained contact with Sherry and was working on a paper with her. In her letter of dismissal, Devany, who had a prior career in the U.S. Navy, treated the sharing of public information with Adams as if Sherry was consorting with an enemy. The weather service has a mandate to communicate and share freely the results of their findings with the public but apparently that does not include a former employee.

Adams wanted me to know that there is life after the river forecasting center. He has been consulting for the World Bank along with other gigs around the world including Beijing. He is the author of a basic textbook on flood forecasting to be published next month.

As for Sherry Chen, she has indicated that she is not willing to quietly go away. She said, “Why do I have to accept the unfair and unjust treatment my government has given me?” She goes on to say, “I am not just fighting for myself but for all victims of racial profiling so that it won’t happen again.”

It would seem that someone powerful is out to get Sherry Chen but that person is not likely to be in NWS. The leadership of NWS does not seem to be much invested in the process to dismiss Sherry. Other than drafting the PDA, Deputy Director Furgione has not shown any further engagement. She did not attend any of the meetings when Sherry and Zeidenberg presented their arguments against the proposal to dismiss. The second version of the PDA was an obvious cut and paste of the first version and would suggest that Furgione didn’t bother to read Zeidenberg’s response to her PDA. A logical question might be to ask her if she personally wrote the PDA and if not who did.

Uccellini declined to act as the deciding official on the PDA originally submitted by his deputy. Why? Did he find wielding the hatchet on Sherry distasteful? On the other hand, did the powers that be that insisted on terminating Sherry’s employment far exceeded his authority to countermand? If so, who is pushing to dismiss Sherry? (I contacted the offices of Furgione and Uccellini hoping for some answers and clarifications. Both referred me to the public affairs office of the Department of Commerce. Someone from the public affairs office promised to get back to me but has not so far.)

Vice Admiral Devany’s letter to remove Sherry also struck me as perfunctory and lacking in substance. His letter basically read like a re-written version of Furgione’s PDA. His reasons to dismiss read like re-statements and displayed no understanding or attempt to respond to the rebuttal presented by Zeidenberg. Again, if Devany did not write the letter, then who did and why?

Other than claiming that Sherry’s national origin is “irrelevant,” Devany did not address why he does not consider Deborah Lee guilty of racism. This question needs further investigation. Why was Lee not reprimanded for her obvious racist remarks? Who is protecting her and why? Lee has recently returned to NOAA as a director of a research laboratory. Surely she could not have been promoted as some kind of reward for her bigotry, could she?

Frank Wu, former Dean of Hastings Law School and incoming chairman of the Committee of 100, is personally advising Sherry on arriving at an appropriate response. “Notwithstanding the prosecution having dropped all charges against Sherry Chen and members of both houses of Congress have demanded from Justice Department a full investigation on whether racial bias have been involved,” Wu said, “How is it possible for NOAA and NWS to thumb their collective noses at that?

The highest priority right now,” he said, “Is to generate support from the communities that should be outraged by the government conduct in this case and others.” Readers are encouraged to contribute to Sherry Chen’s legal war chest to help her paid her bills and as she ponders her next move. Please visit

Readers interested in reviewing the developments leading to the case up to the latest are encourage to visit the website being maintained by Jeremy Wu at

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