Cleared of Spying for China, She Still Doesn’t Have Her Job Back

It is the case that the government simply will not let die.

Three years ago, the Justice Department dropped espionage-related charges against Sherry Chen, a Chinese-American hydrologist at the National Weather Service, clearing her of accusations she had used a stolen password to download information about the nation’s dams and lied about a meeting with a high-ranking Chinese official.

But Chen still cannot get back to work. Even though her name was cleared, her employers at the Commerce Department — which oversees the National Weather Service — continue to press their case that Chen be fired for many of the same charges she was exonerated for, according to two people familiar with the case but not authorized to speak about it publicly.

The Commerce Department said it planned to fire Chen in 2015. She appealed to the U.S. Merit Systems Protection Board, an independent, bipartisan board charged with safeguarding the rights of civil servants. Last month — in an unusually strong-worded statement — the board ruled the Commerce Department must reinstate her, give her back pay and cover her legal fees.

In the ruling, the judge overseeing the case, Michele Szary Schroeder, suggested that Commerce officials had buried exculpatory evidence that would have cleared Chen. She also wrote that the two officials who had decided to fire Chen appeared “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,” Schroeder wrote of the two Commerce Department officials who advocated for Chen’s dismissal.

Despite that ruling, the Commerce Department plans to appeal the ruling and press ahead with Chen’s dismissal, according to the people familiar with the case.

Congressional officials say the case against Chen and separate charges that were brought and then dropped against a Chinese-American professor at Temple University continue to raise concerns that Chinese-Americans have become targets for prosecution and workplace discrimination.

“I am dumbfounded,” said Rep. Ted Lieu, D-Calif., who, along with other members of the Congressional Asian Pacific American Caucus, has been following Chen’s case closely. “The appropriate reaction is for the Department of Commerce to apologize to Sherry Chen. Instead, they’re going to jack up her already large legal costs and trauma, and only continue to drag this story out and highlight for the American public that this termination should never have happened in the first place.”

Lieu, who as a lawyer brought cases before the Merit Systems Protection Board, and others say that an appellate court is unlikely to reverse the board’s decision, especially given new findings that Commerce officials may have hid evidence that would have exonerated Chen.

Among other findings, the case revealed that Commerce Department officials buried a dozen sworn statements from Chen’s co-workers at the National Weather Service. Those statements suggested she had work-related reasons to access a national dams database, and the password she used was not stolen — it was a shared “office password.”

Investigators also failed to include findings that the information Chen had shared with her former colleague in China was publicly available and not a secret.

“I can discern no reason how the agency could have reached the conclusion that these materials were not relevant,” Schroeder wrote in her ruling, adding that the agency’s decision to exclude that exculpatory evidence “defied logic.”

As part of her initial appeal to the Merit Systems Protection Board, Chen said she was a “victim of gross injustice.” The judge agreed. “After reviewing the evidence and testimony in this matter, I believe Ms. Chen’s assertion is correct.”