Government moves to dismiss lawsuit over Marc Fogel's detention in Russia

The U.S. Department of State on Friday filed a motion seeking to dismiss a lawsuit filed by the mother of an Oakmont teacher detained in Russia.

Malphine Fogel of Butler sued the department and Secretary of State Antony Blinken in June, alleging that the American government is treating her son differently than other American citizens arrested and held in Russia.

Marc Fogel, then 60, was arrested on Aug. 14, 2021, when he returned to Moscow to begin his 10th year teaching at the Anglo-American School.

When he landed at the Sheremetyevo Airport, Fogel had prescribed medical marijuana with him. When his belongings were searched, Fogel was detained. He was later tried and convicted.

A Russian court ordered him to serve 14 years’ incarceration. He remains there, even after a complex prisoner swap in August resulted in the release of other high-profile Americans.

For more than three years, Fogel’s family has been fighting to get the secretary of State to declare him “wrongfully detained” under the Levinson Act. Receiving the designation would provide Fogel and his family additional resources, including being entitled to information on U.S. policy.

In June, Malphine Fogel filed suit, alleging claims for equal protection and due process, among others.

But, in its motion on Friday, the State Department said the lawsuit should be dismissed, arguing that the Levinson Act provides guidance in determining whether someone is wrongfully detained.

“(I)t does not give disappointed individuals a right to have federal courts second guess the State Department’s handling of these complex situations,” the DOJ said.

The government attorneys said the United States has demanded Fogel’s release on humanitarian grounds given his poor health.

“The State Department has repeatedly stated that obtaining Mr. Fogel’s release from Russian prison is a priority for the federal government,” it said, noting officials are in regular contact with Fogel’s family and attorneys.

According to the filing, thousands of Americans are detained overseas each year, and assisting them is one of the highest priorities of the State Department and its embassies.

When a person is detained, the government provides a range of services, it continued, including conducting in-person prison visits, contacting family members, establishing an overseas trust for family and friends to transfer money to the detainee and monitoring health and welfare.

“The State Department’s commitment to assisting detained individuals does not typically encompass advocacy for their release,” the government wrote.

The secretary asserts that the State Department maintains neutrality as to the legal validity of a citizen’s imprisonment overseas “except in extremely rare circumstances.

“If correct, Ms. Fogel’s reading of the statute would dramatically alter that presumption and require the secretary of state, in each of the thousands of detention cases in which the State Department provides assistance every year, to review within an arbitrary time frame … and determine whether every single one of those detentions is ‘wrongful,’ ” they wrote.

That, the filing continued, “would not be a reasonable use of the secretary of state’s limited time and resources.”

Further, the filing asserts that the court does not have the authority to review an administrative agency action, and instead, the executive branch — and specifically the State Department — is uniquely qualified to make the assessment of wrongful detention.

In the “rare instances” where the government asserts a person is wrongfully detained, the State Department wrote, those cases require “diplomatic ‘engagement at the highest levels,’ and ‘rapid, agile and coordinated actions.’ ”

In its filing, the government said the Levinson Act “suggests but does not mandate” consideration of 11 factors to determine whether it is a wrongful detention. The family argues that Marc Fogel meets at least six of the criteria, including that the detention is a pretext for an illegitimate purpose and that the person is being detained substantially because of American citizenship.

The secretary of state asserts that there is no authority in the law that requires the government to explain to Ms. Fogel why her son has not been designated as wrongfully detained and that she is misinterpreting the language of the Levinson Act.

It reads in part, that the secretary of state “shall review, as expeditiously as possible, the cases of United States nationals abroad to determine if there is credible information that they are being detained unlawfully or wrongfully.”

According to the government, the word “shall” in the act modifies the term “review,” not “determine.”

“There is no dispute here that the State Department has done all that Ms. Fogel could ask for under the Levinson Act, even if she does not agree with the outcome,” the government wrote.