Marc Fogel's family sues U.S. government over failure to declare him 'wrongfully detained'

The mother of an Oakmont teacher held in Russian prisons for nearly three years filed a federal lawsuit in Pittsburgh on Tuesday against the U.S. Department of State over its failure to declare Marc Fogel as wrongfully detained.

Malphine Fogel, 95, of Butler alleges in the complaint that the U.S. government is treating her son differently than it has other American citizens arrested in Russia, including WNBA star Brittney Griner.

“The Secretary of State and/or the Department of State has failed to provide any explanation or legitimate reason for treating a similar case (i.e. Brittney Griner) differently than Marc Fogel’s case,” the lawsuit says.

It names as defendants Secretary of State Antony Blinken, accusing him of failing to perform his duties as required by federal law, as well as the Department of State, for failing to act expeditiously.

A State Department spokesperson said Tuesday the agency does not generally comment on matters that are the subject of litigation.

Fogel, then 60 years old, was arrested on Aug. 14, 2021, after traveling from Pennsylvania to Moscow, where he expected to begin his final — and 10th — year teaching American history at the Anglo-American School there.

When Fogel landed at the Sheremetyevo Airport that day, he had medical marijuana with him — prescribed for pain following three back surgeries, a hip replacement and knee and rotator cuff surgeries.

Following a trial, Fogel was convicted of possessing less than an ounce of medical marijuana and sentenced to serve 14 years in a Russian maximum security penal colony.

He was moved to the prison, several hours away from Moscow, in the fall of 2022.

The lawsuit alleges that Fogel’s is an exorbitant sentence handed down only because he is American.

“Marc Fogel’s arrest and sentencing were part of Russia’s scheme to close (the Anglo-American School in) Moscow and provide Russia with leverage in future prisoner exchange negotiations with the United States,” the lawsuit states.

The 21-page complaint cites the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, which establishes procedures for the U.S. government to identify citizens as wrongfully detained “as expeditiously as possible.”

Fogel’s family has been lobbying since his arrest for the American government to declare Fogel wrongfully detained, but it has not happened.

The lawsuit notes the government applied wrongfully detained labels for Griner, also convicted of smuggling marijuana into Russia, as well as Trevor Reed, Paul Whelan and Wall Street Journal reporter Evan Gershkovich.

The Levinson Act lists 11 criteria to establish an American national has been wrongfully detained. The lawsuit alleges that Fogel meets eight of them, including that he is being held: solely because he is a U.S. national; to influence political concessions from the U.S. government; as a pretext for an illegitimate purpose; in inhumane conditions; and because U.S. diplomatic engagement is likely necessary to secure the person’s release.

The Russian government targeted the Anglo-American School for political and economic reasons, including retaliation against the United States for sanctions it imposed against Russia in 2016, according to the lawsuit.

The Anglo-American School was founded in 1949 by the U.S., British and Canadian governments to educate children of diplomats. It was closed on May 12, 2023, and on June 30, the Russian Ministry of Justice declared it to be a foreign agent, the lawsuit says.

The complaint alleges that the American government knew about Russia’s plan to close the school prior to Fogel’s arrest but failed to warn him.

“Marc Fogel’s arrest and conviction were part of the Russian government’s political efforts to shut down AAS Moscow,” the lawsuit states.

The lawsuit alleges that a former employee at the school who was a close friend to a high-level officer in the Ministry of Foreign Affairs provided a tip that Fogel might attempt to smuggle drugs into the country, leading to his arrest.

The lawsuit also alleges that Fogel is not receiving adequate medical care since his detention, has been denied doctor’s visits and given injections without consent or knowledge of the drugs being given.

Under the Levinson Act, if Fogel is declared wrongfully detained, it would entitle his mother to receive information on U.S. policy, including contact information for State Department officials, answers to questions, legal resources and travel to and from Washington, D.C.

In the lawsuit, the plaintiff also includes a claim for equal protection based on Griner’s return to the United States.

She was 31 when she was arrested at the same airport as Fogel.

Blinken designated Griner as wrongfully detained on May 3, 2022. She was exchanged Dec. 8, 2022, for Russian arms dealer Viktor Bout, who was known as the “Merchant of Death.”

“Unlike Brittney Griner and other United States nationals detained in Russia, Secretary Blinken has intentionally excluded Marc Fogel and his family from the protections afforded to them under the Levinson Act without articulating a compelling governmental interest, important governmental interest, and/or rational basis for doing so,” the lawsuit says.

It alleges the State Department has “actively deterred” Fogel’s family from seeking the wrongfully detained designation and has failed to disclose to them why.

“In doing so, Secretary Blinken has precluded any opportunity for Marc Fogel or his family members to exercise their due process rights guaranteed under the United States Constitution,” the complaint states.