Sherry Chen (hydrologist)

Sherry Chen[1] (Chinese: 陈霞芬[2]) was a hydrologist working in the National Weather Service (NWS) office in Wilmington, Ohio. She was accused of spying and arrested in October 2014.[3] In March 2015, federal prosecutors dropped all charges against her without explanation[4] before the trial began. Even with the case dropped, Sherry was fired from her job in March 2016 for many of the same reasons that she was originally prosecuted for. In October 2016, Sherry filed a case of wrongful employment termination to the Merit Systems Protection Board (MSPB). In April 2018, MSPB issued a decision stating that Sherry was "a victim of gross injustice" and ordered the Department Of Commerce (NWS is an agency under DOC) to give her job back with back pay. In June 2018, DOC filed an appeal of the MSPB decision. Unfortunately, MSPB has lacked a quorum to process appeals and its backlog has grown to 1,600 cases by the end of October 2018. In January 2019, with her case in an indefinite limbo, Sherry's legal team filed a civil lawsuit against the U.S. government for the malicious prosecution and false arrest in the United States District Court for the Southern District of Ohio. The case is now pending.

Historical context

The National Security Strategy issued in late 2017[5] officially declared China to be a competitive rival to the U.S. Implementation of the strategy has followed with intensified information campaigns and additional legislations and regulations that also enable the profiling practice, such as the "whole-of-society" approach[6] advocated by FBI Director Christopher Wray and the Department of Justice's China Initiative[7].

Sherry Chen's background and employment in NWS

Sherry Chen is a naturalized U.S. citizen born in Beijing, China. From an early age, she was interested in engineering, especially in the abstract nature of water and air. She earned advanced degrees in Hydrology in Beijing, married and moved to the United States to pursue a graduate degree in Water Resources and Climatology. After graduation, she worked for the Missouri Department of Natural Resources for over 11 years before moving to the Ohio River Forecast Center (OHRFC) of the National Weather Service in March 2007.

Sherry’s primary work was to develop and implement the Ohio River Community HEC-RAS Model[8], which was the largest of its kind in the nation at that time. The goal of the computer model is to significantly improve flood prediction for over 2,000 miles along the Ohio River and its tributaries. The modeling effort is a critical part of the joint mission of OHRFC and the U.S. Army Corps of Engineers (USACE). 

Substantial Geographic Information System (GIS) work must be done to geo-referencing the channel cross-section data and extend the cross-sections into floodplain areas, including levees and dams that protect communities from flooding, bridges, and off-channel storage areas. Sherry was the hydraulic modeler in the team, responsible for setting up the model in great detail. Inches matter because it represents the difference between levees being breached or not. Levee failure can lead to significant loss of property and, possibly, lives.

Her team received the 2011 National Weather Association Larry R. Johnson Special Award for the “development of and operational success with the Ohio River Community HEC-RAS Model during May 2011 Ohio and Mississippi River flooding." [9] Sherry worked many long hours during a critical period of the record-setting flood event to get the best possible model results to aid the USACE in their operational decision-making process.

Federal prosecution and case dismissal

Sherry's case was triggered by her trip to Beijing to visit her elderly parents in 2012. One of her relatives had a dispute with local government about a water pipeline and approached Sherry for help since Mr. Jiao Yong at China’s Ministry of Water Resources is Sherry's former classmate in Hydrology. Sherry met with Mr. Jiao for 15 minutes and told him about her relative’s complaint. Towards the end of the meeting, Mr. Jiao said his office was trying to fund the repairs of China’s aging reservoir system and was curious how this may work in the U.S. As a favor to a former classmate and also for a fellow professional in the same field, Sherry agreed to help.

Once returned to USA, Sherry sent Mr. Jiao some public websites and also asked around at work to see if any of her co-workers could help. Her boss introduced her to talk to a colleague at Water Management Division of the US Army Corps of Engineers (ACE). The colleague said Mr. Jiao could talk to her directly. Sherry then emailed Mr. Jiao to contact the colleague, without following up further herself. Later, the colleague reported Sherry to the government security agency, suggesting that Sherry may be a Chinese spy and may be stealing government information. Since then, Sherry had unwittingly become a Chinese spy suspect by the US government.

In June 2013, Sherry was interviewed in her office by two security agents from the Department of Commerce. It was a 7-hour marathon interrogation with no food, water, or break. The agents told Chen that she could not tell this interview to anyone, and that she didn't need a lawyer. Chen tried to cooperate and told the agents everything she knew. The agents failed to find any “spying” evidence. But they still claimed that Sherry was “lying” to federal investigators because she couldn't quite recall some of the dates or events.

On October 20, 2014, six FBI agents took her away in handcuffs in front of her colleagues. The Department of Justice (DOJ) issued an indictment with a punishment of up to 25 years in jail and $1M in fines.[1] The original charges included accusing Sherry of stealing data, intentionally exceeded authorized access to a database and two false statements, meaning that she lied to investigators.

Sherry's lawyer, Peter R. Zeidenberg, a partner at Arent Fox in Washington, D.C., defended her case. He found fatal flaws in the case and filed three motions pointing out these flaws and request DOJ to have the case dismissed. The prosecutor went back to grand jury to fix the problems and came back with eight charges and added another prosecutor on his team. After extensive interviews of witness including almost all of Chen's coworkers, search of the history of Chen's bank account statements over twenty years since she came to the US, personal and official email accounts, computer activities, the government decided to drop all the charges against Chen in March 2015 without explanation[10].

Firing and MSPB verdict

Despite the dropping of all charges, the NWS fired her in March 2016 [11] citing many of the same reasons that she was originally prosecuted for[1]. In October 2016, Sherry filed a case of wrongful employment termination to Merit Systems Protection Board (MSPB), an independent quasi-judicial agency established in 1979 to protect federal merit systems against partisan political and other prohibited personnel practices and to protect federal employees against abuses by agency management. In Sherry's case, the management agency is the Department of Commerce (DOC), which oversees the NWS housed in the National Oceanic and Atmospheric Administration.

MSPB held a public hearing on Sherry's case in Cincinnati, Ohio on March 14–15, 2017. 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. On April 23, 2018, Chief Administrative Judge Michele Schroeder issued her verdict. In her 135-page written decision[12], 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 reinstate her employment at the National Weather Service and pay her back pay plus benefits. 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 further 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." [13]

The historical chance of a federal employee winning a MSPB appeal is less than 2%. Not only did Sherry beat the odds and overwhelmingly won her appeal against DOC, the decision also provided a strong indictment of the mishandling of her case.

DOC appeal

In June 2018, despite the clear verdict and the lack of new arguments, DOC filed an appeal of the MSPB decision. Sherry filed a cross-appeal. The written arguments from both sides were completed on August 28, 2018. The next step is for MSPB to review and decide on the petitions, which require a quorum of at least two members. Unfortunately MSPB had only one member at that time and it's down to zero as of Feb. 28, 2019. Three individuals were nominated to MSPB in 2018, but one withdrew and the Senate Republicans refused to confirm the other two until a third member is nominated[14]. The backlog of appeals in MSPB has grown to more than 1,600 cases at the end of 2018[15]. Sherry's case is in indefinite limbo with MSPB.

Civil lawsuit

On January 18, 2019, Sherry Chen's legal team filed a civil lawsuit against the U.S. government for the malicious prosecution and false arrest of Sherry Chen[16] in the United States District Court for the Southern District of Ohio. The case is now pending.

Sherry still doesn't have her job back or got the back pay owed to her[17]. A group of volunteers are helping her raise the mounting legal fee through Sherry Chen Defense Fund.

References
  1. Perlroth, Nicole (2015-09-15). "Chinese-American Cleared of Spying Charges Now Faces Firing". The New York Times. ISSN 0362-4331. Retrieved 2019-03-17.
  2. Perlroth, Nicole (2015-09-16). "无辜涉间谍案美华裔专家遭政府解聘". The New York Times. Retrieved 2018-12-28.
  3. Fritz, Angela (2015-05-12). "Falsely accused of spying, Weather Service employee's life turned upside down". washingtonpost.com. Retrieved 2015-05-17.
  4. Perlroth, Nicole (2015-05-09). "Accused of Spying for China, Until She Wasn't". nytimes.com. Retrieved 2015-05-17.
  5. http://www.whitehouse.gov, White House (2017-12-01). "National Security Strategy [December 2017]". Cite journal requires |journal= (help)
  6. Kranz, Michal (2018-02-13). "The director of the FBI says the whole of Chinese society is a threat to the US — and that Americans must step up to defend themselves". Business Insider. Retrieved 2019-03-17.
  7. "Attorney General Jeff Sessions Announces New Initiative to Combat Chinese Economic Espionage". www.justice.gov. 2018-11-01. Retrieved 2019-03-17.
  8. Adams Thomas; Chen Sherry; Davis Raymond; Schade Trent; Lee Deborah (2010). "The Ohio River Community HEC-RAS Model". World Environmental and Water Resources Congress 2010. Proceedings: 1512–1523. doi:10.1061/41114(371)160. ISBN 9780784411148.
  9. "National Weather Association Newsletter of November 2011" (PDF).
  10. "Federal Case Against Sherry Chen Dismissed".
  11. Fuchs, Chris (2018-05-04). "Judge orders reinstatement of federal scientist fired after dropped spying charges". NBC News. Retrieved 2018-12-28.
  12. "MSPB Decision on Sherry Chen Case".
  13. "Merit Board Judge Reinstates Commerce Scientist Accused of Spying". Government Executive. Retrieved 2019-03-17.
  14. "When I'm at Work: Stopping Neglect: A Fact Sheet for Supported Employees". doi:10.1037/e675672010-001. Cite journal requires |journal= (help)
  15. "Watch List". APA JUSTICE. Retrieved 2019-03-17.
  16. "Ohio scientist accused of spying sues after charges dropped". WCPO. 2019-01-22. Retrieved 2019-03-17.
  17. Perlroth, Nicole (2018-05-17). "Cleared of Spying for China, She Still Doesn't Have Her Job Back". The New York Times. ISSN 0362-4331. Retrieved 2019-03-17.
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