Merit Board Judge Reinstates Commerce Scientist Accused of Spying

A government scientist accused of spying for China won reinstatement to her job as a Commerce Department hydrologist last week.

The decision by an administrative judge at the Merit Systems Protection Board in the widely reported case of Sherry Chen was cheered by lawmakers in the Congressional Asian Pacific American Caucus, who believed her indictment was based on unfair stereotypes.

Chen, a naturalized U.S. citizen since 1997 originally from Beijing, was a federal flood forecaster in Missouri and a National Weather Service employee in Ohio. In October 2014, she was arrested by the FBI on charges of spying to obtain trade secrets for China and then terminated from her job in March 2016.

She faced 40 years in prison for allegedly lying about misuse of an agency computer password and accessing the database to give a Chinese acquaintance facts on how the United States pays for dam repairs. The indictment was dropped, however, in 2015, though Chen still lost her job due to suspicions among some colleagues.

More than 40 members of Congress signed a letter asking then-Attorney General Loretta Lynch to probe whether race played an improper role in the decision to prosecute Chen. Her supporters set up a legal defense fund.

In a 130-page ruling first reported on by The Wall Street Journal, Chicago-based MSPB Judge Michele Szary Schroeder said Chen was the “victim of a gross injustice.” The judge reduced Chen’s termination to a 15-day suspension based on a separate complaint, and ordered back pay.

The Justice and Commerce officials working Chen’s case were “more concerned about being right than doing what’s right,” Schroeder wrote. “Based on the unyielding nature of their testimony, I would not have been surprised if they rejected that 2 plus 2 equals four.”

The ruling also characterized the government lawyers’ filing as “troubling” in that before firing Chen, Commerce officials failed to file a dozen sworn declarations supportive of Chen from her co-workers.

The judge did, however, reject for lack of proof charges that Chen’s race and national origin played a role in the indictment and termination, which were attempted in the context of combatting China’s industrial espionage.

The larger ruling was hailed by Rep. Judy Chu, D-Calif., chairwoman of the Congressional Asian Pacific American Caucus. “Unfortunately, there have been multiple cases in which Chinese American scientists like Sherry have been wrongfully targeted and arrested for alleged espionage only to have those charges dropped with no explanation,” Chu said. “That is why CAPAC has made it a top priority to urge the Department of Justice to examine whether there is a pattern or practice of Asian Americans being singled out by federal law enforcement and prosecutors for espionage…. No American should have to live in fear that their entire lives may be turned upside down due to wrongful accusations and unwarranted racial profiling.”

Added Rep. Ted Lieu, D-Calif., “I worked on this case last year and helped cause the Department of Justice to change its policies to help make sure Chinese-Americans are not targeted by law enforcement because of their ethnicity. It’s clear that Sherry Chen was the victim of gross injustice and unwarranted racial profiling during her time at the department. I’m calling on the [Commerce inspector general] to immediately open an investigation into this wrongdoing so that it does not happen to our fellow Americans again.”

Chen is scheduled to return to work in July, though a Commerce official told Government Executive on Monday that the department will appeal.