author: BARKETT, Circuit Judge:

text:
    STATE OF ALABAMA, State of Alabama ex rel. James H. Evans, Attorney General, Plaintiffs-Appellants-Cross-Appellees, v. UNITED STATES DEPARTMENT OF the INTERIOR, Minerals Management Service, Defendants-Appellees-Cross-Appellants, Manuel Lujan, Jr., Scott Sewell, Defendants, OXY USA Inc., Defendant-Intervenor-Appellee-Cross-Appellant, Exploration Mobil Oil Exploration & Producing Southeast, Inc., Conoco, Inc., Texaco Exploration and Production, Inc., Intervenors-Appellees-Cross-Appellants, AGIP Petroleum Company, Inc., Intervenor.
    No. 94-6657.
    United States Court of Appeals, Eleventh Circuit.
    June 5, 1996.

      William R. Sawyer, Asst. U.S. Atty., Mobile, AL, Charles W. Findlay, III, Lisa K. Hemmer, Brian L. Ferrell, U.S. Dept, of Justice, Environment and Natural Resources Division, General Litigation Section, Washington, DC, Andrew F. Walch, U.S. Dept, of Justice, Environment and Natural Resources Division, Denver, CO, Robert L. Klarquist, J. Carol Williams, U.S. Dept, of Justice, Environment and Natural Resources Division, Appellate Section, Washington, DC, for defendants-appellees-cross-appellants.
    R. Craig Kneisel, Otis J. Goodwyn, William D. Little, Office of the Attorney General, Montgomery, AL, Louis Linton Morgan, Morgan & Williams, Ltd., Metairie, LA, for Alabama.
    Conrad Armbrecht, T.A., Armbreeht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, AL, J. Berry St. John, Jr., Craig Wy-man, Liskow & Lewis, New Orleans, LA, for Intervenors.
    Before COX and BARKETT, Circuit Judges, and PROPST , District Judge.

       Honorable Robert B. Propst, U.S. District Judge for the Northern District of Alabama, sitting by designation.

   BARKETT, Circuit Judge:

Both parties appeal different aspects of the summary disposition of this cause. The material facts are not in dispute. Under a lease agreement with the U.S. Department of the Interior (“DOI”), Mobil Oil Exploration and Production Southeast, Inc. presently leases a tract of submerged land on the outer continental shelf called Federal Offshore Lease Block 823. On this tract, Mobil has four wells producing natural gas from a reservoir that straddles the federal/Alabama border. Mobil pays royalties to the DOI on the natural gas it produces. Though the natural gas reservoir lies partially within Alabama, Mobil pays no royalties to Alabama.

Under federal law, the DOI and an adjoining coastal state may agree to share the royalties derived from reservoirs that straddle the federal/state boundary. Federal law also requires the DOI to give the state 27% of the royalties it receives from reservoirs near the state border as compensation for drainage from reservoirs lying partly within the state. Alabama and the DOI negotiated in an effort to reach an agreement on the sharing of royalties from reservoirs along the federal/Alabama border. When they could not reach an agreement, Alabama sued the DOI seeking a declaration that, before the DOI may authorize Mobil to produce natural gas on Block 823 from the particular reservoir straddling the federal/Alabama boundary, federal law required the DOI first to enter into a formal cooperative development agreement with Alabama that addressed compensating Alabama for any drainage that may occur from that reservoir.

Alabama premises its claim upon section 5(j)(2) of the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1334(j)(2), which provides as follows:

(j) Cooperative development of common hydrocarbon-bearing areas
(2) Prevention of harmful effects
The Secretary shall prevent, through the cooperative development of an area, the harmful effects of unrestrained competitive production of hydrocarbons from a common hydrocarbon-bearing area underlying the Federal and State boundary.

43 U.S.C. § 1334(j)(2).

I. Background

Coastal states own submerged lands adjoining their coasts extending seaward three miles. See Submerged Land Act of 1953, 43 U.S.C. § 1312; see also Roger J. Marzulla, Federalism Implications and OCSLA Section 8(g), 2 Nat. Resources & EnvT 26,26-27 (1986). The Secretary of the DOI has the authority to issue oil, gas and other mineral leases for the submerged lands of the outer continental shelf, which Congress has defined as beginning where the states’ jurisdiction ends, i.e., more than three miles from the coast. See OCSLA, 43 U.S.C. § 1331 et seq.

Though the Submerged Land Act of 1953 and the OCSLA establish jurisdictional boundaries, they do not address the issue of oil and gas drainage. Because oil and gas reserves can straddle the jurisdictional boundary, it is possible for the lessee of one government to drain the reserves located under the other government’s territory. Under the common law “rule of capture,” the owner of land has the right to capture all oil and gas underlying his land including oil and gas that migrates there from beneath another’s land. See 8 Howard R. Williams & Charles J. Meyers, Oil and Gas Law 983 (1995); State of Louisiana v. United States, 832 F.2d 935, 938 (5th Cir.1987). In this regard, the law governing oil and gas has been described as being more like that governing wildlife than the law governing solid minerals. See Dean Lueck, The Rule of First Possession and the Design of the Law, 38 J.L. & Econ. 393,403 (1995).

The problem with the rule of capture is that it encourages a tract owner to build wells near his border so as to drain not only the reserves underlying his own tract, but also the reserves underlying a neighboring tract. Id. The neighboring tract owner, in order to protect his mineral rights, must then build offsetting wells — most advantageously right across the border from his neighbors’ wells — and start production or risk losing his reserves. Each tract owner then has an incentive virtually to race to drain the reservoir as quickly as possible to capture as much oil or gas as he can. The result is (1) economic waste in drilling unnecessary wells; (2) a corresponding heightened risk of damage to the environment; and (3) physical waste of the oil or gas itself because the faster production occurs, the lower the long-term recovery will be from the reservoir. Because of its negative effects, nearly every state has abrogated the rule of capture legislatively with well-spacing rules, production regulations, and/or other conservation mechanisms. See id.

But the rule of capture still governs the outer continental shelf. See State of Louisiana v. United States, 832 F.2d 935, 938 (5th Cir.1987). Within the outer continental shelf, it is not as important to abrogate the rule of capture because reservoirs do not straddle different tracts of land as they would within a state: the DOI controls the entire area; it has authority to create lease tracts that correspond to reservoirs; and it has authority to require lessees to combine drilling and production efforts. But all the problems of unrestrained application of the rule of capture are present along the federal/state boundary where about 150 known reservoirs, including the one at issue in this suit, lie partly under federal control and partly under state control.

Congress passed section 5(j) as part of the Oil Pollution Act of 1990. See generally J.B. Ruhl & Michael J. Jewell, Oil Pollution Act of 1990: Opening a New Era in Federal and Texas Regulation of Oil Spill Prevention Containment and Cleanup Liability, 32 S.Tex.L.Rev. 475 (1991). Section 5(j) was the latest Congressional pronouncement in a long-standing dispute between states and the federal government over offshore oil and gas reserves. See State of Louisiana, 832 F.2d at 941; State of Texas v. Secretary of Interior, 580 F.Supp. 1197, 1203 (E.D.Tex.1984); see also Roger J. Marzulla, Federalism Implications and OCSLA Section 8(g), 2 Nat. Resources & Env’t 26 (1986); Edward A. Fitzgerald, The Seaweed Rebellion: The Battle Over Section 8(g) Revenues, 8 J.Energy L. & Pol’y 253 (1988).

II. Procedural Background

In its complaint, the State of Alabama alleged that it was unlawful, pursuant to section 5(j) of the OCSLA, 43 U.S.C. § 1334(j), for the DOI to authorize Mobil to produce natural gas by wells located on Block 823 from the reservoir straddling the federal/Alabama boundary without first entering a formal cooperative development agreement with Alabama. Alabama argued that Mobil would drain natural gas from the part of the reservoir within Alabama and that Alabama would lose the royalties corresponding to that drained natural gas. However, Alabama did not request that production be halted until a cooperative development agreement was entered. Instead, Alabama requested an order requiring the DOI to place into an escrow account all royalties the federal government received from Mobil’s natural gas production from Block 823 until the DOI and Alabama entered a cooperative development agreement addressing the drainage issue.

The DOI moved for summary judgment arguing that section 5(j) did not require the DOI to reach a formal cooperative development agreement with Alabama before the DOI could authorize the production of natural gas and that, even if section 5(j) required a formal cooperative development agreement, it did not require such an agreement to address drainage compensation. The DOI argued that section 5(j) merely requires the DOI to make a good faith effort to reach an agreement with Alabama, and that it had done so by providing Alabama with all relevant information, considering Alabama’s comments and concerns, and attempting in good faith to negotiate an agreement. The DOI further asserted that, because no harmful effects are present in the reservoir at issue, i.e., because Alabama has not drilled wells necessary only to protect itself from drainage, there are as yet no harmful effects.

The district court found that the DOI’s interpretation of section 5(j) was inconsistent with the language of section 5(j) and held that it was unlawful under section 5(j) for the DOI to authorize Mobil to begin natural gas production without first entering into a cooperative development agreement with Alabama. The court then ordered the DOI and Alabama to reach a cooperative development agreement and required the DOI to place all royalties paid by Mobil to the DOI for natural gas production from Block 823 into the court registry until an agreement was reached.

Notwithstanding its decision to “hold” the royalties pending agreement, the district court disagreed with Alabama’s assertion that section 5(j) required the DOI to address drainage compensation through the division of royalties. The court held, instead, that another provision of the OCSLA, section 8(g) of the OCSLA, 43 U.S.C. § 1337(g), discussed infra, exclusively governed these issues.

Although we agree with the district court that section 5(j) does not affect the drainage compensation provisions found elsewhere in the OCSLA, we reverse the district court’s determination that federal law requires the DOI to enter a formal cooperative development agreement before authorizing production.

III. Whether section 5(j) required the DOI to address drainage compensation through the division of royalties.

Alabama asserts that the district court erred in holding that compensation for drainage and division of royalties is governed exclusively by section 8(g) of the OCSLA, 43 U.S.C. § 1337(g), and, by implication, that such compensation need not be addressed in cooperative development under section 5(j). Alabama asserts that the cooperative development mandated by section 5(j) by definition addresses compensation for drainage, and that an agreement on the division of royalties is a tool the DOI should have available to it to negotiate a cooperative development agreement with Alabama. We find that Alabama reads too much into section 5(j) and that section 5(j) neither adds nor takes anything away from provisions contained in section 8(g)(2) that govern drainage compensation through the division of royalties.

Prior to Congress’s passage of section 5(j), section 8(g)(2) already directly addressed the issue of drainage compensation. It provided that the DOI must give the adjoining coastal state 27% of the royalties it receives from any federal lease in an area designated the “8(g) zone.” This zone is the band of the outer continental shelf situated between three and six miles offshore; the state is to receive its 27% share of the royalties regardless of whether the federal lessee is draining oil or gas from state territory or not. Section 8(g)(2) provides that

the Secretary shall transmit to [the adjoining] coastal State 27 percent of [the] revenues [derived from any lease of any Federal tract which lies within three nautical miles of the seaward boundary of any coastal State], together with all accrued interest thereon. The remaining balance of such revenues shall be transmitted simultaneously to the miscellaneous receipts account of the Treasury of the United States.

Section 8(g)(2) of the OCSLA, 43 U.S.C. § 1337(g)(2).

Section 8(g)(2) replaced an earlier provision that established a scheme whereby revenues obtained from a federal lease operating in the 8(g) zone would be shared in a “fair and equitable manner” by the federal government and the coastal state if a determination was made that a common field of oil or gas underlay federal and state territory so as to create a threat of drainage by the federal lessee. See 43 U.S.C. § 1337(g) (repealed 1986); see also State of Louisiana, 832 F.2d at 941-42. The earlier provision required an exchange of information between the governor and secretary, then negotiations, and then, if no agreement could be reached, determination by a district court of a “fair and equitable disposition of the revenues.” See 43 U.S.C. § 1337(g) (repealed 1986).

The district court that heard the first such case found this original scheme to be unworkable and, in its order, urged Congress to change the law. See State of Texas, 580 F.Supp. at 1223. But see Fitzgerald, The Seaweed Rebellion, at 275-77 (arguing that the scheme would have been workable had the district court not misinterpreted key phrases in the statute). Congress responded by replacing section 8(g)(2) with the 27% compromise language presently found in section 8(g)(2). Congress made this change to section 8(g)(2) with the intent of permanently settling disputes over drainage compensation on the outer continental shelf. See State of Louisiana, 832 F.2d at 941—42 (quoting legislative history of the amendments to section 8(g) and concluding that section 8(g)(2) represented a compromise between state and federal interests).

In addition to the 27% state share of royalties provided for by section 8(g)(2), when Congress passed section 5(j), section 8(g)(3) already provided that the Secretary or the governor of a coastal state must notify the other if either determines that a reservoir may straddle the federal/state boundary, and that the Secretary must provide the governor with notice of current and projected development in the area. Additionally, section 8(g)(3) provided that, if the Secretary had leased an area, the Secretary and the governor “may” enter into “a unitization or other royalty sharing agreement” to combine tracts and share the revenues from production. But if no agreement was reached, the Secretary had the authority to proceed with the leasing of the area alone and give the state 27% of the revenue pursuant to subsection (g)(2).

In reading sections 8(g)(2) and 8(g)(3), it is reasonable to assume that Congress intended section 8(g)(2) to strike a compromise between coastal states and the federal government to resolve the drainage compensation issue by giving states 27% of the royalties derived from production in the 8(g) zone. Somewhat apart from the issue of drainage compensation, Congress intended section 8(g)(3) to provide the DOI with tools necessary to ensure good conservation practices on and efficient development of reservoirs straddling the border, such as the authority to negotiate and agree with states to combine lease tracts and divide the royalties by why of unitization or to agree to other royalty sharing agreements with states. Such other royalty sharing agreements under section 8(g)(3) might include reciprocal agreements to share with a state royalties the federal government has realized from federal production from a reservoir straddling the border in exchange for the state sharing with the federal government royalties the state has realized on a different reservoir straddling the border.

In light of sections 8(g)(2) and 8(g)(3), we find section 5(j) to be more akin to section 8(g)(3), than to section 8(g)(2) as Alabama asserts. We find unpersuasive Alabama’s argument that, in enacting section 5(j), Congress intended to indirectly rekindle the drainage compensation issue it had four years earlier permanently settled by amending section 8(g)(2) — particularly where, as here, Congress did not explicitly mention drainage compensation in the text of section 5(j), but merely referred to cooperative development. Given the long dispute both in Congress and the courts between coastal states and the DOI over drainage compensation along the federal/state boundary, one would expect substantial legislative history and debate over section 5(j) had Congress intended to address this issue. Yet there are no committee reports, virtually no record of floor debates and little other legislative history regarding section 5(j). Accordingly, we hold that Congress did not intend to address drainage compensation in section 5(j).

We find further support for our holding by comparing the version of section 5(j) that Congress passed with the version that was first introduced. As originally offered in the Senate, section 5(j) required the Secretary to “prevent the harmful effects of unrestrained competitive production of hydrocarbons from a common hydrocarbon-bearing area underlying the Federal and' State boundary by protecting against drainage through the cooperative development of such area.” See 135 Cong.Rec. S8488-03, S8500-S8501 (1990) (emphasis added). Section 5(j) further provided both the federal government and the affected coastal state with the authority to seek an injunction in district court “in order to prevent the drainage of federal oil and gas resources ” until the parties could agree on a “fair and equitable apportionment of the oil and gas resources involved,” or until the district court entered final judgment in favor of one party or the other. Id.

Comparing the version of section 5(j) originally offered with that eventually passed, it is apparent that the breadth of section 5(j) was drastically reduced over the course of legislative debate and negotiation. At passage, gone was any mention of drainage and all of the language that would have provided for the “fair and equitable apportionment of oil and gas resources” and injunctive relief. Although section 5(j) may have been introduced with the intent of addressing the drainage compensation issue, it is significant that all the language related to drainage compensation had been eliminated. by section. 5(j)’s passage. It is reasonable to assume that Congress would not have deleted this language had it intended section 5(j) to address this issue. Cf. Russello v. United States, 464 U.S. 16, 23-24, 104 S.Ct. 296, 300-01, 78 L.Ed.2d 17 (1983) (“Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it maybe presumed that the limitation was not intended.”); see also Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 391 (5th Cir.1976).

Alabama’s interpretation of section 5(j) asks us to read back into section 5(j) provisions pertaining to drainage compensation that Congress — for whatever reason — specifically eliminated prior to passage. In light of the specific provisions addressing drainage compensation in section 8(g)(2) that remained in effect following the passage of section 5(j), we cannot accept Alabama’s argument that we should construe section 5(j)’s broad “cooperative development” language as indirectly abrogating the 27% compromise struck in section 8(g)(2). For all of the foregoing reasons, we agree with the district court that drainage compensation is governed by section 8(g)(2), and is not altered by section 5(j).

TV. Whether section 50) requires a formal agreement in other respects.

We turn now to the DOI’s arguments that section 5(j)(2) does not require it to enter into a formal cooperative development agreement with Alabama. Section 5(j)(2) provides that

[t]he Secretary shall prevent, through the cooperative development of an area, the harmful effects of unrestrained competitive production of hydrocarbons from a common hydrocarbon-bearing area underlying the Federal and State boundary.

43 U.S.C. § 1334(j) (emphasis added). We find that reading the plain language of section 5(j), it is clear that the word “prevent” means prevent before something occurs, particularly in the context of the cooperative development envisioned under this section. Moreover, we cannot agree with the DOI’s interpretation that the word “prevent” can be reasonably read to apply to something after it has occurred. The DOI concedes that it interprets “cooperative development” under section 5(j) as requiring it to (1) provide the adjoining state with all relevant information, (2) consider the state’s comments and concerns, and (3) attempt in good faith to negotiate an agreement. It would make little sense to undertake such activities only after a finding is made that the state, is likely to build offsetting wells. The “cooperative development” Congress mandated in section 5(j) itself would help to identify when the drilling of such wells is likely to occur. Put another way, the harmful effects Congress directed the DOI to prevent in section 5(j), i.e., the drilling of wells necessary only to prevent drainage and other measures that do not comport with conservation practices and that are connected with two sovereigns developing and producing natural gas from the same reservoir without cooperating with each other, are likely to occur whenever it is discovered that there is a reservoir straddling the federal/state boundary. The DOI may not wait until the state has already built an offsetting well or is about to begin building an offsetting well to engage in cooperative development. Therefore, “prevent” as the term is used in section 5(j) must be read in the context of long-term prevention.

The definition of “development” in the OCSLA provides further support for our reading. Development refers to activity after discovery of reserves, but before production of oil or gas, including drilling, construction of platforms, and operation of onshore support facilities. See 43 U.S.C. § 1331(Z). For these reasons, we hold that the DOI’s interpretation of section 5(j) as requiring a showing that harmful effects have occurred or are likely to occur before the DOI is under an obligation to undertake cooperative development is inconsistent with the language of section 5(j).

The DOI next argues that “cooperative development” under section 5(j)(2) does not require a formal agreement. We. need not address the issue of whether the term “cooperative development” implies that an agreement must be reached, because, assuming arguendo that it does, we nevertheless find that section 5(j)(2)’s cooperative development language “is not susceptible to a literal reading because it is simply not possible to order two parties to enter into an agreement if they do not agree.” See Ponca Tribe v. State of Oklahoma, 37 F.3d 1422, 1435 (10th Cir.1994) (holding that language in the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701, et seq., requiring a court to . order a state and an Indian tribe to agree to a compact within 60 days is not subject to a literal reading); see also Seminole Tribe v. State of Florida, 11 F.3d 1016, 1020 (11th Cir.1994). Thus, although Congress could impose rules governing drainage compensation as it did in section 8(g)(2), see section 8(g) of the OCS-LA, 43 U.S.C. § 1337(g) (requiring the DOI to transfer 27% of the royalties derived from production by federal lessees from reservoirs on the outer continental shelf within three miles of the state boundary to states), or could require that royalties obtained from a federal lease be shared in a “fair and equitable manner” by the federal government and the coastal state as determined by a district court, see 43 U.S.C. § 1337(g)(2) (repealed 1986); see also State of Louisiana, 832 F.2d at 939; Fitzgerald, The Seaweed Rebellion, Congress lacks the power to force the DOI and a state to agree to a cooperative development agreement. See Ponca Tribe, 37 F.3d at 1435. It does have the power to require the DOI to attempt to reach an agreement in good faith. However, we are left with the question of what happens if the DOI and the affected state fail to reach a cooperative development agreement. Cf section 11(d)(7)(B) of the IGRA, 25 U.S.C. § 2710(d)(7)(B) (requiring a state and tribe to agree to a compact, but providing that, if they fail to agree to a compact, then the state and tribe must submit to a mediator and then, if an agreement still cannot be reached, the Secretary of the DOI decides the dispute).

Although section 5(j) as it was originally introduced authorized both the state and the federal government to file suit in district court and seek an injunction “or other appropriate remedy” when the parties failed to reach a cooperative development agreement, these provisions had been deleted by section 5(j)’s passage. See 135 Cong.Ree. S8488-03, S8500-S8501 (1990). Thus, when Congress deleted these provisions, it left a gap in section 5(j) regarding what happens if the parties cannot reach an agreement. In this case, the DOI informally filled this gap by proceeding unilaterally.

We agree with the DOFs action — that it may proceed unilaterally — provided the DOI first has negotiated in good faith to reach a cooperative development agreement with the affected coastal state. In this regard, we find section 5(j)(2) to be closely akin to section 8(g)(3), which gives the DOI the authority to enter into “unitization or other royalty sharing agreement^]” with states regarding reservoirs straddling the federal/state border. We read section 5(j)(2) as going one step further to require the DOI to negotiate in good faith with states to enter into one or more Royalty sharing agreements regarding reservoirs straddling the federal/state border with the goal of promoting good conservation practices.

Were we to hold, as the district court did, that the DOI may not unilaterally authorize production without first reaching a cooperative development agreement with Alabama under section 5(j), we would be interpreting section 5(j) as requiring the DOI to negotiate until an agreement is reached, thereby allowing Alabama to refuse to agree until its demands are met. Such an interpretation would hardly place the parties on an equal footing for negotiating an agreement because the consequence of the DOI and Alabama failing to reach an agreement would be to delay federal production until an agreement was reached, but there would be no corresponding consequence for Alabama. State production would not be affected by such an interpretation of section 5(j). Section 5(j) only requires the DOI to reach a' cooperative development agreement with states; it does not require the states to enter a cooperative development agreement with the DOI. Therefore, Alabama could always threaten to leave the negotiating table unless its demands are met, while the DOI would have to stay until an agreement is reached because, under the district court’s interpretation, the DOI could only lawfully authorize production under section 5(j) after it has entered a cooperative development agreement. This consequence would give Alabama effective veto power over the DOFs lawful authorization of natural gas and oil production; in other words, Alabama could hold the production of natural gas from federal territory “hostage” until the DOI had agreed to Alabama’s terms. We find that Congress could not have intended section 5(j) to give coastal states such veto pov/er over federal territory when the DOI and a state are unable to reach a cooperative development agreement.

Nonetheless, in negotiating to reach agreement, neither the DOI nor the state may rely on patently unreasonable conditions. States may legitimately assert noncompliance with section 5(j) by alleging that the DOI failed to negotiate in good faith. Likewise, the DOI can defend such an allegation or its unilateral authorization of production, by asserting that the state conditioned formal agreement on unreasonable demands.

Difficult cases may arise in which the parties, despite good faith negotiations by both sides, simply cannot reach an agreement. In such cases — when it cannot be said that either side is being unreasonable — in the absence of Congressional direction, we conclude that the DOI may proceed alone to authorize production on its lease tracts without violating section 5(j).

In this case, the DOI proposed a royalty sharing agreement that would share with Alabama the royalties it received from Mobil’s production on federal Block 823 in exchange for Alabama sharing with the federal government the royalties derived from Alabama Lease Block 132 in the Fairways area, which is a second natural gas reservoir straddling the federal/Alabama border located near the reservoir underlying Block 823. Federal Block 823 and Alabama Lease Block 132 thus each drew natural gas from two separate reservoirs straddling the federal/Alabama border. On Block 823, Mobil had the potential to drain natural gas from Alabama, while on Block 132, Alabama’s lessee had the potential to drain natural gas from federal territory. Neither party had lessees drilling offset wells to prevent drainage.

The DOI’s proposal would have compensated Alabama for any drainage occurring from wells on Block 823 and correspondingly would have compensated the federal government for any drainage occurring from wells on Block 132 without the need for either sovereign to build offset wells to protect itself from drainage. Alabama rejected this proposal, insisting on negotiating for a share of the royalties from Mobil’s production on federal Block 823, while refusing to broaden the negotiations to include sharing of royalties from Alabama Block 132. Alabama’s actions call into question its interest in promoting conservation and preventing harmful effects through section 5(j), as opposed to seeking financial gain. While we note that the DOI’s responsibility to prevent harmful effects is a continuing one, we do not find, under the circumstances as they have developed to this point in this case, that the DOI has failed to negotiate in good faith.

For the foregoing reasons, we AFFIRM the district court’s holding that section 5(j) does not affect the drainage compensation provisions found in section 8(g)(2), and we REVERSE the district court’s holding that section 5(j) requires the DOI to enter a formal cooperative development agreement before authorizing natural gas production from federal territory.

AFFIRMED in part, REVERSED in part and REMANDED for further disposition consistent with this opinion.

      . See section 8(g) of the OCSLA, 43 U.S.C. § 1337(g), discussed infra.

      . This is a case of first impression concerning the interpretation of section 5(j) of the OCSLA. Stat-utoiy interpretation presents a question of law that we review de novo. Lohr v. Medtronic, Inc., 56 F.3d 1335, 1341 (11th Cir.1995). We also review an administrative agency’s statutory interpretation de novo, but defer to an agency’s interpretation if it is reasonable. Id.

      . In full, section 5(j) provides:
      (j) Cooperative development .of common hydrocarbon-bearing areas
      (1) Findings.—
      (A) The Congress of the United States finds that the unrestrained competitive production of hydrocarbons from a common hydrocarbon-bearing geological area underlying the Federal and State boundary may result in a number of harmful national effects, including—
      (i)the drilling of unnecessary wells, the installation of unnecessary facilities and other imprudent operating practices that result in economic waste, environmental damage, and damage to life and property;
      (ii) the physical waste of hydrocarbons and an unnecessary reduction in the amounts of hydrocarbons that can be produced from certain hydrocarbon-bearing areas; and
      (iii) the loss of correlative rights which can result in the reduced value of national hydrocarbon resources and disorders in the leasing of Federal and State resources.
      (2) Prevention of harmful effects
      The Secretary shall prevent, through the cooperative development of an area, the harmful effects of unrestrained competitive production of hydrocarbons from a common hydrocarbon-bearing area underlying the Federal and State boundary.

        .See 43 U.S.C. § 1349 (providing for citizen suits for "any person having a valid legal interest which is or may be adversely affected ... to compel compliance with [the OCSLA]”); Administrative Procedure Act, 5 U.S.C. § 706.

      . Alabama charges a royalty rate of 25%, while the federal government charges only 16%%.

        . Presently over $24 million is being held by the district court.

      . Section 8(g)(3) provides that
      [wjhenever the Secretary or the Governor of a coastal State determines that a common potentially hydrocarbon-bearing area may underlie the Federal and State boundary, the Secretary or the Governor shall notify the other party in writing of his determination and the Secretary shall provide to the Governor notice of the current and projected status of the tract or tracts containing the common potentially hydrocarbon-bearing area. If the Secretary has leased or intends to lease such tract or tracts, the Secretary and the Governor of the coastal State may enter into an agreement to divide the revenues from production of any common potentially hydrocarbon-bearing area, by uniti-zation or other royalty sharing agreement, pursuant to existing law. If the Secretary and the Governor do not enter into an agreement, the Secretary may nevertheless proceed with the leasing of the tract or tracts. Any revenues received by the United States under such an agreement shall be subject to the requirements of paragraph (2).
      Section 8(g)(3) of the OCSLA, 43 U.S.C. § 1337(g)(3).


source: Caselaw Access Project

author: MAYER, Circuit Judge.

license: Public Domain

text:
    Lauretta L. MINTZMYER, Petitioner, v. DEPARTMENT OF the INTERIOR, Respondent.
    No. 95-3665.
    United States Court of Appeals, Federal Circuit.
    May 16, 1996.

      Paul J. Ruskin, Douglaston, New York, argued, for petitioner. With him on the brief was Carl J. Hartmann, New York City, of counsel.
    William P. Donovan, Jr., Attorney, Commercial Litigation Branch, Department of Justice, Washington, D.C., argued, for respondent. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director and Joseph A. Kijewski, Assistant Director. Also on the brief was Patricia M. Miller, Office of the Solicitor, Department of the Interior, Washington, D.C., of counsel.
    Before NEWMAN, MAYER, and LOURIE, Circuit Judges.
   MAYER, Circuit Judge.

Lauretta L. Mintzmyer petitions for review of a final decision of the Merit Systems Protection Board, No. DE1221930414-W-4, dismissing her individual right of action appeal. We affirm.

Background

In 1980, Mintzmyer became the Regional Director of the Rocky Mountain Region of the National Park Service, a bureau within the United States Department of the Interior (agency). As such, she was in the Senior Executive Service working in Denver, Colorado. In October 1991, Mintzmyer and two other directors of different regions were part of a three-way rotation, in which Mintzmyer was reassigned as Regional Director of the Mid-Atlantic Region in Philadelphia, Pennsylvania.

Displeased with her transfer, Mintzmyer filed an Equal Employment Opportunity complaint with the agency, claiming that her reassignment was due to gender and age discrimination and was in retaliation for whistleblowing. In April 1992, Mintzmyer retired. She then amended her EEO complaint to allege that she had been coerced into retiring for the same reasons.

In October 1992, Mintzmyer filed a complaint against the agency in the United States District Court for the District of Colorado, alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a); and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a)(l)-(2). The case was transferred to the United States District Court for the District of Columbia.

Then, in January 1993, Mintzmyer filed a complaint with the United States Office of Special Counsel, alleging that she had been reassigned and constructively discharged in reprisal for making protected disclosures under the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (1989) (codified at scattered sections of Title 5, United States Code) (WPA). The Office of Special Counsel notified Mintzmyer in March 1993 that she had not made any protected disclosures within the meaning of that act. See 5 U.S.C. § 2302(b)(8) (1994). Nor did it find any apparent nexus between the. disclosures she claimed were protected and personnel actions allegedly taken against her.

Mintzmyer then filed an individual right of action (IRA) appeal to the Merit Systems Protection Board. The administrative judge found that the relief sought and factual allegations in both the board appeal and the district court action were virtually identical. Consequently, he dismissed the appeal without prejudice because of the potential collateral estoppel implications of the pending case in district court.

On January 12, 1995, the district court entered judgment in favor of the agency on seven of Mintzmyer’s eight claims, but awarded her $5,025 for a year-end bonus it found she was wrongfully denied in reprisal for filing a discrimination complaint against the agency. See Mintzmyer v. Babbitt, No. 93-0773(GK), 1995 WL 25342 (D.D.C. Jan. 12, 1995). The court expressly rejected Mintzmyer’s claim that she had been constructively discharged for filing a discrimination complaint against the agency. Id., slip op. at 43-46.

Mintzmyer then refiled her IRA appeal to the board, which dismissed it. The administrative judge held that the board had no jurisdiction over four alleged retaliatory agency actions that she had not raised initially before the Office of Special Counsel. Alternatively, he ruled that only one of those additional four actions involved an appealable “personnel action.” He held further that her claim that she had been constructively removed in reprisal for whistleblowing was collaterally estopped by the district court’s holding that she had not been constructively discharged in retaliation for having filed age and sex discrimination complaints against the agency. The administrative judge also held that she was collaterally estopped from relit-igating her claims that she had been denied a bonus and step increase because of whistle-blowing. Mintzmyer’s final claim, that the agency reassigned her in reprisal for whistle-blowing, was dismissed as moot because the board could provide her no meaningful relief after she had voluntarily retired. The initial decision became final on June 15,1995, when the full board denied Mintzmyer’s petition for review. 5 C.F.R. § 1201.113(b) (1995).

On appeal, Mintzmyer first argues that the board improperly dismissed the four claims it found had not been raised before the Office of Special Counsel. Second, she challenges the board’s determination that her constructive removal claim was collaterally estopped by the district court’s holding.

Discussion

We review the board’s decision within precisely defined statutory limits. See Hayes v. Department of Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). We must affirm its decision to dismiss Mintzmyer’s appeal unless she shows it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994). Mintzmyer has not met this burden.

A.

Mintzmyer first argues that the board erred as a factual matter in finding that she had failed to take four of the eight acts of whistleblower reprisal to the Office of Special Counsel. Consequently, she asserts that the board wrongfully dismissed those claims.

The WPA prohibits government personnel actions taken against an employee in reprisal for whistleblowing. 5 U.S.C. § 2302(b)(8) (1994); Horton v. Department of Navy, 66 F.3d 279, 282 (Fed.Cir.1995); Ward v. Merit Sys. Protection Bd., 981 F.2d 521, 523 (Fed.Cir.1992). Except when there exists an independent right to appeal an adverse personnel action directly to the board, an employee or former employee aggrieved by the action must first seek corrective action from the Office of Special Counsel. 5 U.S.C. §§ 1214(a)(3), 1221(b) (1994); Knollenberg v. Merit Sys. Protection Bd., 953 F.2d 623, 625-26 (Fed.Cir.1992). Only after the Office of Special Counsel has notified the employee or former employee that it has terminated its investigation or has failed to commit to pursuing corrective action within 120 days may that person file an IRA appeal, under 5 U.S.C. § 1221, to the board. 5 U.S.C. § 1214(a)(3); Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1036 (Fed.Cir.1993); Knollenberg, 953 F.2d at 625-26.

At the Office of Special Counsel, Mintz-myer argued that the agency had taken the following personnel actions against her in reprisal for whistleblowing: (1) reassigned her; (2) denied her a salary step increase; (3) denied her a bonus; and (4) constructively discharged her through a course of “harassing and retaliatory behavior.” Before the board, Mintzmyer alleged that the agency also had taken the following “retaliatory actions”: (1) threatened to reprimand her; (2) continuously threatened her with “prosecution”; (3) made several false and slanderous statements “with regard to actions taken against and by” her; and (4) declared that she was a threat to President George Bush just prior to a visit he made to the Mid-Atlantic Region.

Mintzmyer, who has the burden of establishing the board’s jurisdiction over her IRA appeal, see Cruz v. Department of Navy, 934 F.2d 1240, 1244 (Fed.Cir.1991) (in banc), does not argue that the four claims dismissed as newly raised were directly appealable to the board and thus within its jurisdiction. Rather, she points to the allegation in her complaint filed with the Office of Special Counsel that she was “subjected to constructive discharge by harassing and retaliatory behavior” in arguing that she had raised these claims previously. But she did not raise these four alleged agency actions as independent personnel actions taken against her before the Office of Special Counsel. Mintzmyer was required “to articulate with reasonable clarity and precision the basis for [her] request for corrective action under the WPA” to the Office of Special Counsel. Ellison, 7 F.3d at 1037; see also Ward, 981 F.2d at 526. Her failure to do so deprived the board of jurisdiction over these four claims; thus, its dismissal was proper.

B.

Mintzmyer next argues that the board erred in holding that she was collaterally estopped from litigating that her retirement constituted a constructive discharge in reprisal for whistleblowing. She contends that the district court addressed only whether she had been constructively discharged because of age and gender discrimination, not whistleblowing. She sees these as different issues based on related, but different, facts. While she is correct that a discrimination claim is distinct from a whistleblowing claim, the ultimate issue in both claims is whether Mintzmyer retired under such intolerable working conditions that her retirement constituted a constructive discharge by the agency. That was fully litigated in the district court.

A retirement or resignation “is presumed to be a voluntary act and, therefore, beyond the Board’s jurisdiction.” Braun v. Department of Veterans Affairs, 50 F.3d 1005, 1007 (Fed.Cir.1995); see also Cruz, 934 F.2d at 1244. However, the board does have jurisdiction over an appeal by an employee whose retirement or resignation was involuntary, was a constructive removal. Cruz, 934 F.2d at 1244. Thus, to determine whether the board had jurisdiction over Mintzmyer’s IRA appeal requires determining whether she was constructively removed. Stephens v. Merit Sys. Protection Bd., 986 F.2d 493, 496 (Fed.Cir.1993). However, if another forum has already concluded that Mintzmyer was not constructively discharged, and that holding is entitled to collateral estoppel effect, then the board lacked jurisdiction to hear this claim.

The board may give collateral estoppel effect to court decisions in appropriate circumstances. Kroeger v. United States Postal Serv., 865 F.2d 235, 238 (Fed.Cir.1988); Thomas v. General Servs. Admin., 794 F.2d 661, 664 (Fed.Cir.1986). Whether collateral estoppel, or issue preclusion, applies here turns on whether: (1) the issue previously adjudicated by the district court is identical to the one before us; (2) that issue was “actually litigated” in the district court; (3) the district court’s resolution of that issue was necessary to the resulting judgment; and (4) Mintzmyer was fully represented in the district court. Rice v. Department of Treasury, 998 F.2d 997, 999 (Fed.Cir.1993); McCandless v. Merit Sys. Protection Bd., 996 F.2d 1193, 1198 (Fed.Cir.1993). Mintz-myer concedes that she was represented by counsel in the district court, but contends that the other three elements are not present here. We disagree.

The legal standard for establishing a constructive discharge is the same regardless of whether the discharge was allegedly in retaliation for whistleblowing or for filing a discrimination claim. The district court required Mintzmyer to establish that the agency intentionally made working conditions intolerable, thereby forcing her to involuntarily retire. Babbitt, slip op. at 43. The test the court applied was whether the agency created or tolerated “ ‘retaliatory working conditions that would drive a reasonable person to resign.’” Id. (quoting Katradis v. Dav-El of Washington, 846 F.2d 1482, 1485 (D.C.Cir.1988)). The board has adopted the same test in examining whether an appellant has been constructively discharged in reprisal for whistleblowing. See Heining v. General Servs. Admin., 68 M.S.P.R. 513, 519-22 (1995); Zygmunt v. Department of Health and Human Servs., 61 M.S.P.R. 379, 383 (1994); Burke v. Department of Treasury, 53 M.S.P.R. 434, 439 (1992). Mintzmyer does not argue that this test is inappropriate in whistleblower cases, and we endorse the board’s use of it.

In addition to the identity of the legal issue raised by both claims, the facts raised by Mintzmyer in support of each claim are identical. The board explicitly found that “the underlying facts relied upon by [Mintzmyer] to support her claims of constructive discharge before the Board and the District Court are the same.” She has not established that this finding is unsupported by substantial evidence. Before the district court, Mintzmyer alleged that the agency had constructively discharged her by undermining her ability to manage her staff in the Md-Atlantic Region. Babbitt, slip op. at 2, 24. She argued that a number of different agency actions, viewed cumulatively and in context, rendered her position there untenable, forcing her to retire. In rejecting this claim, the court addressed three controversial situations she faced upon assuming her post as Mid-Atlantic Regional Director and insulting treatment she received from security officials who viewed her as a security risk to President Bush.

In her IRA appeal, Mintzmyer claimed that she was “subjected to continuing harassment with regard to ... employees ([under her] supervision).” As part of her prehear-ing submission to the board, she explained further that the agency had subjected her to a continuous stream of harassment in Philadelphia that undermined her relationship with her subordinates and decreased her effectiveness, resulting in a constructive discharge. Although she argues on appeal that the factual basis for her whistleblower claim differs from that of her discrimination claim and notes that the district court “refused to hear or decide any of the facts going to constructive discharge caused by whistle-blower retaliation,” she has alleged no acts of harassment to which she was subjected in Philadelphia that differ from those she relied upon in litigating her discrimination claim.

Consequently, we believe the board’s conclusion that the issue in each forum was identical is correct. It is also beyond serious question that the issue was actually litigated in district court and was necessary to the resulting judgment. The court conducted a five-day bench trial and concluded that the agency’s actions did not create the type of intolerable working conditions that amount to a constructive discharge. Mintzmyer was collaterally estopped from litigating her constructive discharge claim. That she has appealed the district court’s judgment does not alter our conclusion. See Rice, 998 F.2d at 999 (“[T]he pendency of an appeal has no effect on the finality or binding effect of a trial court’s holding.”).

Conclusion

Accordingly, the decision of the Merit Systems Protection Board is affirmed.

AFFIRMED.

      In light of this holding, we need not address whether these claims constitute appealable personnel- actions under 5 U.S.C. §§ 1221(a), 2302(b)(8).


author: PLAGER, Circuit Judge.

text:
    VIAM CORPORATION and Vehicle Power Accessories, Plaintiffs-Appellants, v. IOWA EXPORT-IMPORT TRADING CO., and Spal S.r.l., Defendants-Appellees.
    No. 95-1262.
    United States Court of Appeals, Federal Circuit.
    May 22, 1996.

      Charles E. Wills, Charles E. Wills Law Corporation, Los Angeles, California, argued, for plaintiffs-appellants.
    Daniel J. Cosgrove, Zariey, McKee, Thomte, Voorhees & Sease, P.L.C., Des Moines, Iowa, argued, for defendants-appel-lees. With him on the brief was Bruce W. McKee.
    Before MICHEL, PLAGER, and RADER, Circuit Judges.
   PLAGER, Circuit Judge.

Believing itself threatened with a suit for patent infringement, plaintiff Viam Corporation, a California company, brought a declaratory judgment action in the California district court against the defendants, Spal Corporation, an Italian company and owner of the patent at issue, and its exclusive licensee, Iowa Export-Import Corporation, an Iowa company. The complaint alleged noninfringement and invalidity of the patent. The Italian company moved for dismissal of the suit on the ground that the court was without personal jurisdiction over it, and the Iowa company moved for dismissal on the grounds that without the Italian company, which it considered an indispensable party to the suit, it too was entitled to dismissal. The district court granted the motions. Viam Corp. v. Iowa Export-Import Trading Co., 1995 WL 544971, 35 USPQ2d 1505 (C.D.Cal. February 13, 1995).

Viam appeals. The case requires us to examine principles of due process under the Fifth Amendment as they affect personal jurisdiction over a foreign entity in the context of a declaratory judgment patent action.

BACKGROUND

Spal is an Italian corporation that makes universal power windows for cars. Iowa Export-Import Corporation (“Iowa Export”) is an Iowa corporation with the exclusive right to advertise, market and distribute Spal products in North America. Spal ships the products from Italy, through Canada, to Des Moines, Iowa. Viam is a California corporation that competes with Iowa Export and Spal in the automobile-power-accessories market.

Iowa Export’s lawyers wrote to Viam stating that Viam’s Kodak universal power kit, which Viam was displaying at a trade show in Las Vegas, was covered by a United States patent owned by Spal (the ’386 patent). Viam promptly filed a declaratory judgment action in the Central District of California against Iowa Export and Spal, seeking a declaration that the ’386 patent is invalid and that Viam does not infringe the patent. Spal moved to dismiss on the basis that process had not been served properly and that the trial court lacked personal jurisdiction over Spal.

The trial court granted Spal’s motion to dismiss, finding that service on Spal had thus far been deficient under Federal Rule of Civil Procedure 4 and the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (“Hague Convention”), and that Spal’s limited contacts with California did not constitute the “minimum contacts” required to support personal jurisdiction under International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Given its separate finding of no personal jurisdiction over Spal, the trial court did not let Viam attempt to perfect service on Spal in compliance with the Hague Convention.

Iowa Export then moved to dismiss the complaint on the grounds that Spal was a necessary party under Fed. R. Civ. Proc. 19. Because Iowa Export had filed its answer in the case, the trial court treated the motion as one for judgment on the pleadings. The trial court granted the motion, finding that dismissal is required when an indispensable party cannot be joined under Rule 19, that Spal was an indispensable party to an adjudication of invalidity because it owned the patent and had retained substantive rights in its patent notwithstanding its exclusive marketing agreement with Iowa Export, and that the lack of personal jurisdiction over Spal prevented the court from joining Spal.

DISCUSSION

1.

We review the district court’s determination that it lacks personal jurisdiction over Spal, an issue of law, without deference to the view of the district court. Akro Corp. v. Luker, 45 F.3d 1541, 1543, 33 USPQ2d 1505, 1506 (Fed.Cir.), cert. denied,— U.S. -, 115 S.Ct. 2277, 132 L.Ed.2d 281 (1995). In order to determine whether personal jurisdiction exists over a defendant, the court must determine whether jurisdiction lies under both the applicable state long-arm statute and the Due Process Clause of the Federal Constitution. The California long-arm statute extends the reach of personal jurisdiction to the limits of the Federal Constitution. See Michigan Nat’l Bank v. Superior Ct., 23 Cal.App.3d 1, 6, 99 Cal.Rptr. 823, 826 (1972); Belmont Indus., Inc., v. Superior Court, 31 Cal.App.3d 281, 285, 107 Cal.Rptr. 237, 239-40 (1973). The question before us, then, is whether sufficient contacts exist between Spal and the State of California to satisfy the requirements of International Shoe.

Courts use various ways to describe whether, in a given case, there have been sufficient contacts between the defendant over whom jurisdiction is asserted and the forum State. Some cases talk in terms of “specific jurisdiction,” usually with reference to a situation in which the cause of action arises directly from the defendant’s contacts with the forum State. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 15, 105 S.Ct. 2174, 2182 n. 15, 85 L.Ed.2d 528 (1985). For that purpose, specific jurisdiction is to be distinguished from “general jurisdiction,” referring to the situation in which the defendant’s contacts at issue have no necessary relationship to the cause of action. Although that distinction may be analytically helpful in some fact situations, it is not useful here.

The analytical tool useful in cases in which the defendant’s contacts are the result of establishing a distribution network in the forum State for the sale of defendant’s products is generally referred to as the “stream of commerce” theory. In Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 30 USPQ2d 1001, (Fed.Cir.1994), this court, in determining whether a federal district court had personal jurisdiction over an out-of-state corporation accused of patent infringement, adopted and applied the stream of commerce theory. In reaching that result, we first concluded that the choice of law — whether to apply stream of commerce theory, and which version to apply (see Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)) — was a decision for this court; our courtesy rule under which we are guided by the law of the regional circuit on certain procedural matters was not applicable to an issue which, though procedural in nature, was so intimately involved in the substance of enforcement of the patent right.

Subsequently, in Akro Corp. v. Luker, 45 F.3d 1541, 33 USPQ2d 1505 (Fed.Cir.1995), we took the same approach to a case in which the out-of-state party was the patentee, rather than the alleged infringer. We saw no reason to vary the choice-of-law rule, as between out-of-state infringers and patentees. Id. at 1543. The choice of law regarding the applicable rule governing personal jurisdiction thus was to be the Federal Circuit rule, not the regional circuit rule.

All the reasons for adopting and applying the stream of commerce theory to the question of personal jurisdiction over an out-of-state alleged infringer as defendant, fully explored in Beverly Hills Fan, are equally applicable to the same question regarding an out-of-state patentee as defendant. When the patentee sues the alleged infringing tort-feasor who is the out-of-state defendant, it is easy to see why the defendant should be held to respond if there have been sufficient contacts with the forum State. It may at first blush seem strange in a declaratory judgment action to apply the same standard to the patentee, when it is the infringer, the putative tortfeasor, who is suing the (presumably) innocent patentee.

But the question of personal jurisdiction is not a function of wrongdoing. Rather it is a question of the power of a judicial forum to decide the issues brought before it. A paten-tee who seeks to enforce its patent may bring an infringement action in a proper forum, and issues regarding the validity and enforceability of the patent may be raised by the defendant. Under our law, a potential defendant in an infringement suit may, in' a proper case, preempt the patentee and initiate a suit challenging the enforcement of the patent. The issues on the merits are essentially the same in either situation; the test for personal jurisdiction, for the forum’s power to hear the issues, should be the same. See Akro, 45 F.3d at 1545, 33 USPQ2d at 1508. Furthermore, as in Beverly Hills Fan, we need not join the debate in Asahi as to which version of the stream of commerce theory is the correct one, because under either theory the result we reach here would be the same. We proceed, then, to decide the issue with those background rules before us.

2.

“[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. “Minimum contacts” is understood to require that a defendant has “purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). And, “[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98, 100 S.Ct. 559, 567-68, 62 L.Ed.2d 490 (1980).

In Akro, a declaratory judgment action against a patentee, we analyzed the problem there by asking whether the patent holder “purposefully directed his activities at residents of [the forum] and, if so, whether the litigation results from alleged injuries that arise out of or relate to those activities.” Akro, 45 F.3d at 1545, 33 USPQ2d at 1508 (internal quotes omitted). In this case, Spal’s marketing agreement and practices with Iowa Export establish a regular distribution channel through which Spal purposefully directed its activities. Iowa Export has the exclusive right to advertise, market and distribute products in the United States. In advertising and selling the invention, Iowa Export uses a Spal catalog which it has obtained from Spal. Furthermore, Iowa Export’s Director of North American Sales reported to Spal on a regular basis as to the sales of Spal products in the United States, and Iowa Export sold approximately $2.4 million worth of Spal products in the United States in 1992. These facts clearly establish a regular chain of distribution from Spal through Iowa Export to various markets in the United States.

Furthermore, Spal did not simply place its product into the stream of commerce. Spal knowingly and intentionally exploited the California market through its exclusive distributor’s advertising in California, and by establishing channels for providing regular advice in California. Iowa Export advertised and sold, and is presently advertising and selling, Spal products, including the subject of the ’386 patent, in California, and Spal provided Iowa Export numerous sales aids which Spal knew would be used in California for selling Spal products there. As in Beverly Hills Fan, “defendants, acting in consort, placed the ... device in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court there.” Beverly Hills Fan, 21 F.3d at 1666, 30 USPQ2d at 1008.

Here Spal purposefully directed its activities at the forum State and Iowa Export, acting as Spal’s agent, purposefully initiated the interaction with Viam that resulted in the instant suit. There is sufficient connection between the activity and the litigation to satisfy this prong of the International Shoe Due Process test.

Minimum contacts is a necessary, but not a sufficient, condition to finding personal jurisdiction. Akro, 45 F.3d at 1645—46, 33 USPQ2d at 1508-09; Beverly Hills Fan, 21 F.3d at 1568, 30 USPQ2d at 1009. Once a plaintiff makes the required showing that there have been sufficient minimum contacts by the out-of-state defendant with the forum State, the defendant may still defeat jurisdiction by marshaling a compelling case against jurisdiction on the grounds that its exercise would be unreasonable, contrary to concepts of fair play and substantial justice. Id. The test of unreasonableness is a multi-factored balancing test that weighs any burdens on the defendant against various countervailing considerations, including the plaintiffs interest in a convenient forum and the forum state’s interest in resolving controversies flowing from in-state events. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985).

The inquiry under this test includes a balancing of (1) the burden on the defendant; (2) the interests of the forum state; (3) the plaintiffs interest in obtaining relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the interest of the states in furthering their social policies. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Put succinctly, “such defeats of otherwise constitutional personal jurisdiction ‘are limited to the rare situation in which the plaintiffs interest and the state’s interest in adjudicating the dispute in the forum are so attenuated that they are clearly outweighed by the burden of subjecting the defendant to litigation within the forum.’” Akro, 45 F.3d at 1549, 33 USPQ2d at 1511, quoting Beverly Hills Fan, 21 F.3d at 1568, 30 USPQ2d at 1009.

Spal’s arguments on this issue fall far short of persuading us that it would be inherently unfair to allow this suit to go forward. It is not unfair to require that an out-of-state patent holder who asserts its rights through a local distributor in its regular chain of distribution against an in-state party be held to have subjected itself to the due process of the relevant jurisdiction. Otherwise, out-of-state corporations would be able to set up domestic fronts through which they could do business without subjecting their patents to the rigorous scrutiny demanded by United States patent law. Nor is it unfair to refuse to allow a foreign manufacturer to insulate itself from the jurisdiction of the courts by use of an exclusive distributor. Furthermore, the state has definite and well-defined interests in commerce and scientific development. If defendant’s connections to the forum are so strong as to impact on those interests, as is true in this case, allowing the forum to exercise jurisdiction cannot be said to be unfair.

Spal argues that it is unduly burdensome to require it to litigate in California, rather than in Iowa, the home state of its exclusive agent. Yet according to their own submission to this court, Spal and Iowa Export have initiated a suit seeking to enforce the same patent that is the subject of this suit against other parties, unrelated to this action, in the same district court in the Central District of California. It appears therefore that Spal has found a way to shoulder successfully the burden of litigating in California. In light of this fact, and the substantial contacts detailed above, Spal’s activities in the forum are “not so attenuated” as to defeat a finding of jurisdiction.

3.

Before a court may exercise personal jurisdiction over a defendant, the defendant must be amenable to service of process under some federal or state statute. Akro, 45 F.3d at 1543-44, 33 USPQ2d at 1507. In this case, Viam contends that the Hague Convention provides for Spal’s amenability to service of process. Federal Rule of Civil Procedure 4 reads:

[u]nless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States (1) by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents ....

Fed.R.Civ.P. 4(f)(1) (1995). Both parties concede that service under the Hague Convention would suffice.

The trial court found that Viam’s efforts to serve Spal with summons and complaint failed to accord with then-existing Hague Convention procedures. When Viam attempted to correct the problem by serving Spal properly under the Hague Convention, the district court refused to allow Viam to attempt correct service because it considered such efforts futile in light of its ruling on personal jurisdiction.

Viam now asks that it be afforded a reasonable amount of time to initiate the process for proper service upon defendant Spal in compliance with the Hague Convention. The district court’s decision was clearly based on the court’s belief that it lacked jurisdiction over the defendant. That part of the court’s judgment is therefor vacated.

CONCLUSION

We reverse the district court’s dismissal of Viam’s suit against Spal and Iowa Export. We remand to the district court for further proceedings consistent with this opinion.

REVERSED IN PART, VACATED IN PART, AND REMANDED.

Costs to Viam.

      . Viam Corporation'moved to substitute as plaintiff Vehicle Power Accessories (VPA), a former division of Viam that had become a separate California corporation. Viam urged substitution because VPA had taken over the part of Viam's business potentially infringing the '386 patent. Viam agreed to remain a ''nominal” plaintiff. The district court granted this motion. References to "Viam" in this opinion are references to both Viam and VPA.

      . The Supreme Court's International Shoe jurisprudence is set in the context of state and diversity cases, which turn on 14th Amendment due process. In patent suits we apply the same test to personal jurisdiction questions arising under the 5th Amendment. See Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1565-69, 30 USPQ2d 1001, 1006-1009 (Fed.Cir.1994); Akro Corp. v. Luker, 45 F.3d 1541, 1544-45, 33 USPQ2d 1505, 1508 (Fed.Cir.1995).

      . We express no opinion whether the instant suit is properly maintainable as a declaratory judgment action, that is, whether the evidence supports the conclusion that an actual controversy exists sufficient to establish subject matter jurisdiction for such an action, or whether the district court, in the exercise of its discretion, should decline to hear the matter on the grounds of “considerations of practicality and wise judicial administration.” See Wilton v. Seven Falls Co., -U.S. -, -, 115 S.Ct. 2137, 2143, 132 L.Ed.2d 214 (1995).

      . The district court, and the defendants, were of the- view that the claims against Iowa Export and Spal could be brought in Iowa. We offer no opinion on that question. However, in reversing the dismissal based on lack of personal jurisdiction, we do not intend to foreclose other grounds on which the district court may conclude that the case is not properly before it. Such grounds, if any, are not before us here.


author: PER CURIAM. PER CURIAM: GINSBURG, Circuit Judge,

text:
    UNITED STATES of America v. Kani XULAM A/K/A Steven Barry Citron A/K/A Sereno Citron, Appellant.
    No. 96-3055.
    United States Court of Appeals, District of Columbia Circuit.
    May 14, 1996.
    Before: WALD, GINSBURG, and TATEL, Circuit Judges.

       Judge Ginsburg would deny the motion for the reasons stated in his dissent.

   ORDER

PER CURIAM.

Upon consideration of appellant’s motion for release pending appeal of a pretrial detention order, the opposition thereto, and the reply, it is

ORDERED that the District Court’s detention order be revoked for the reasons stated in the accompanying memorandum. The Clerk is directed to issue forthwith to the District Court a certified copy of this order in lieu of a formal mandate.

Before: WALD, GINSBURG, and TATEL, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Dissenting opinion filed by Circuit Judge GINSBURG.

PER CURIAM:

This appeal from an order of detention pending trial under 18 U.S.C. § 3142 raises troubling issues as to the quantum of evidence necessary to detain an individual prior to trial on the ground that “no condition or combination of conditions will reasonably assure” the presence of the appellant at future court proceedings. This appellant, a Kurd from Turkey, has been an international human rights worker resident in the District of Columbia for over three years and a well-known and admired member of the national human rights community. He has no criminal record, but has been charged with making a false statement in a passport application in 1988. In short, after arriving here from Canada on a temporary student visa, he applied for and obtained an American passport under a false name. If convicted, he likely faces a maximum sentence of six months under the federal sentencing guidelines. The Immigration and Naturalization Service (“INS”) has served notice that it is undertaking an investigation which may result in appellant’s possible deportation and has lodged a detainer to take effect upon his release. The magistrate judge and the district court, on motion of the government, ordered his detention pending trial in the Central District of California solely as a flight risk, conceding he posed no danger to the community or any of its citizens. At the present time, a pretrial detention hearing has been scheduled before the California court.

The Bail Reform Act requires release of a defendant prior to trial unless a judicial officer determines that no conditions or combination of conditions exist which will “reasonably assure the appearance of the person.” 18 U.S.C. § 3142(c) (1994). Under the Act, when the government seeks pretrial detention of an individual on the ground that he poses a risk of flight, the standard it must satisfy is a “preponderance of the evidence.” United States v. Simpkins, 826 F.2d 94, 96 (D.C.Cir.1987). That preponderance must, of course, go to the ultimate issue: that no combination of conditions — either those set out in the Bail Reform Act itself or any others that the magistrate or judge might find useful — can “reasonably” assure that the defendant will appear for trial. 18 U.S.C. § 3142(c). The Act sets out a number of conditions which may be used to ensure appearance, including, inter alia, remaining in custody of a designated person who agrees to assume supervision and to report any violation of a release condition; maintaining employment; abiding by restrictions on place of abode or travel; reporting on a regular basis to a designated law enforcement agency; complying with a curfew; executing a bail bond; and a final catch-all for any condition that the magistrate or judge deems “reasonably necessary” to assure appearance. 18 U.S.C. § 3142(c). Section 3142(g) of the Act sets out the factors to be considered by the magistrate or judge in deciding whether available conditions will reasonably assure the defendant’s appearance: the nature and circumstances of the offense, particularly its nonviolent nature; the weight of the evidence; the history and characteristics of the person, including his character, family ties, employment, length of residence in the community, community ties, past conduct, criminal history, and record of court appearances; and the danger the defendant poses to the community if released.

In every category mentioned in the statute, this appellant was a prime candidate for release. His nonviolent charge carried a maximum of six months imprisonment under the sentencing guidelines; he had no criminal record or record of failure to appear; he was employed and had a wide circle of respected acquaintances and close friends in the community who testified as to his “spiritual” and “intellectual” integrity; and the government acknowledged that he posed no threat to the community. Indeed, the district court admitted that if he were facing only the criminal charge, his “chances [of appearing] might be good.” Nonetheless, the magistrate and district court judge refused to release him pending trial. What militated against him, in the judge’s view, was that the government witness testified that he might be facing deportation to Turkey, where as a Kurd he might be persecuted. The court also believed that “he will go to any other ends ... to address [the] cause [of Kurdish rights], especially when he now realizes there’s a possibility he could be deported.” For that reason, the judge concluded that there would be “no way that [a third-party custodian] can lock him up or restrain him from leaving.” Obviously troubled, he added that the magistrate to whom the appellant is presented after transportation to California “may very well decide to disagree with the decision this court has made” and “nothing in my decision should suggest to [the California magistrate] that ... he does not have jurisdiction to fully consider the issue of bond.” It was then clearly the appellant’s alleged crime — the false identity he claimed to obtain a passport, for which he is presumed innocent — and the possibility of his deportation to Turkey that fueled the judge’s decision.

There are several reasons why we do not believe those factors alone provided a legitimate ground for ordering pretrial detention. First, we are not convinced that the government satisfied its burden of showing a risk of flight. Cf. United States v. Friedman, 837 F.2d 48, 49-50 (2d Cir.1988) (vacating pretrial detention order on grounds that government had not established risk of flight; although charges for sending and receiving child pornography were serious, chance of flight was reduced by absence of prior criminal record, lack of known ability to flee, employment, and family and community ties); United States v. Hinder, 797 F.2d 156, 161— 62 (3d Cir.1986) (reversing pretrial detention order because government did not show risk of flight by preponderance of evidence; even though defendant was clearly capable of obtaining false identification, as demonstrated by prior conviction for crime involving fraudulent identification, family ties and past record of appearing in court as required diminished defendant’s flight risk). Appellant’s strong commitment to advocating his Kurdish cause in the United States, cited by the district court as enhancing his risk of flight, would seem to militate against, not in favor of, flight, since the only way he can pursue that cause is publicly, within the human rights community, and disappearing or fleeing would render him permanently impotent in that respect. How would he be regarded in that community, for instance, if he violated the trust of his third-party custodians, or forfeited bonds or assets they pledged for his release? On a more practical level, the government has taken away all his passports and travel documents, so it is unlikely he could go far even if he wished to. In addition, as explained above, the INS has itself addressed any concerns regarding appellant’s risk of flight by lodging a detainer against appellant, which permits his retention for 48 hours after he is otherwise ordered released, and at that point, the agency may opt to take appellant into custody pending deportation proceedings. 8 C.F.R. § 242.2(c).

Second, any or all of the conditions listed above were available in this case, but there is nó indication in the record that the magistrate judge or the district court judge fully explored the commitments offered by appellant’s witnesses or the appellant’s proffer that he was willing to abide by whatever conditions the court imposed. Cf. United States v. Jackson, 845 F.2d 1262, 1265-66 (5th Cir.1988) (pretrial detention order vacated for failure adequately to consider statutory factors relevant to determination whether conditions are sufficient to assure appearance in court). One of appellant’s witnesses, Sister Patricia Krommer, testified that she would “absolutely” be willing to ensure appellant’s return to court. When then asked, “And what kinds of assistance could you offer in that regard?”, she answered: “Well, first of all, I would keep in contact with him daily. I would provide transportation. If he needed to appear in court, I would bring him in. I would be happy to monitor his whereabouts each day.” A second witness, Kathryn Cameron Porter, president of an international human rights organization (the Human Rights Alliance) and the wife of an eight-term Republican Congressman, John Edward Porter, the founder and co-chair of the Congressional Human Rights Caucus, offered a room in her home, stating that she “most definitely would” be willing to ensure appellant’s return to court and that she “would have no hesitancy to be responsible or custodian, or whatever — whatever the correct legal term is. I would have no hesitancy.” Joseph Eldridge, director of the Lawyers’ Committee for Human Rights, also testified on appellant’s behalf.

Yet, the magistrate judge concluded that '“[t]heir testimony was devoid of any facts from which [the court] could find that [the witnesses] have any means of monitoring [appellant’s] whereabouts. Perhaps most significantly, nothing in the witnesses’ testimony suggests that defendant would be amenable to supervision by any of them.” The district court reiterated that finding, noting that “it is clear that if the accused chose to leave, [Ms. Porter and Sister Krommer] could not stop him.” However, appellant’s attorney proffered, and the district court accepted as accurate, that appellant was “completely willing to comply with the conditions of release of the court, to work with the nun, Sister Pat Krommer, or Kathryn Porter, or whoever else the court would require to comply with the conditions of release and to return to court. He has no intentions of fleeing.” In view of the immense harm to their reputations that Sister Krommer and Ms. Porter would suffer if appellant were to flee and appellant’s proffer that he would comply with any conditions of release imposed upon him, the government failed to prove by a preponderance of the evidence that “no condition or combination of conditions” would “reasonably assure” appellant’s appearance in court. 18 U.S.C. § 3142(e).

Finally, there is no outstanding deportation order against this appellant. Moreover, section 3142(d) has a specific provision for a ten-day temporary hold on a defendant who is not a citizen, during which time the government attorney is to notify the appropriate INS officials so that they may act against the appellant if they choose. 18 U.S.C. § 3142(d)(1)(B). After that time, “[i]f the official fails or declines to take the person into custody ..., the person shall be treated in accordance with the other provisions of this section [3142], notwithstanding the applicability of other provisions of law....” 18 U.S.C. § 3142(d)(2). When the government did not move here for temporary detention under section 3142(d), it does not seem legitimate for it to now introduce the specter of a possible deportation through the back door as a principal reason for detention.

We cannot but conclude that a serious error has been made here. A first-time offender accused of a nonviolent crime with strong community ties and respected members of that community willing to supervise his release in any manner the court finds necessary, including designated residences, curfews, reporting in, is incarcerated pending trial, despite the fact that his entire lifestyle and mission strongly suggest he will stay in place, and his charged misdeed (if, indeed, he is found guilty) was to falsify information on a passport in order to remain in this country. The pretrial detention provisions of the Bail Reform Act of 1984 were not intended to apply to such an appellant. The magistrate judge and district court referred several times to the notion that if the defendant were to flee, his supervisors could not stop him. That, of coursé, is true of every defendant released on conditions; it is also not the standard authorized by law for determining whether pretrial detention is appropriate. Section 3142 speaks of conditions that will “reasonably” assure appearance, not guarantee it. See also H.Rep. No. 1030, 98th Cong., 2d Sess. 15 (1984), reprinted in 1984 U.S.C.CA.N. 3182, 3198 (acknowledging feasibility of conditions even “where there is a substantial risk of flight”). The record here contains more than enough to satisfy the “reasonable” assurance test, and not enough to show by a preponderance of the evidence that no combination of conditions will assure the defendant’s appearance.

Thus, despite the large discretion normally accorded the trial court in this area, we revoke the order of detention.

GINSBURG, Circuit Judge,

dissenting:

The defendant stands charged with making a false statement on a passport application in violation of 18 U.S.C. § 1542. According to the testimony of a Special Agent of the Department of State Security Service, in 1986 the defendant procured a passport in the name of a deceased person, Steven Barry Citron. In 1988, based upon a court document attesting to a change of name, he was issued a new passport, this time in the name of Sereno Citron. In 1993 he obtained yet another passport, this time in the name of Kani Xulam, again based upon a purported change of name. During a search of defendant’s office, agents recovered a Turkish passport with a photograph of defendant and a Canadian social security card, both in the name of Namet Gunduez.

Because the defendant is apparently subject to deportation as an illegal alien — the INS has instituted an investigation and lodged a detainer against him — and has a demonstrated ability to obtain false travel and other documents, the Government suggested that the risk he would flee is sufficiently high that he should be detained pending trial, pursuant to 18 U.S.C. § 3142. The district court held a hearing at which the defendant made the best record he could in support of the proposition that he should be released into the custody of certain respected citizens willing to serve in that capacity. The court then granted the Government’s detention request on the ground that “no condition or combination of conditions” of release could reasonably assure that the defendant would appear as required for future hearings.

As for the testimony of the two witnesses who offered to supervise defendant’s release, the district judge explained at some length why he considered their offers inadequate to assure the defendant’s appearance. Basically, having first concluded that the defendant is likely to flee, the court found that “those persons ... could not stop him.”

Moreover, the Magistrate Judge who compiled the record upon which the district court acted — and who had also concluded that no condition or combination of conditions of release would be adequate — made the following findings of fact. (1) Both of the persons who offered to assume custody of the defendant, and the third witness who testified in opposition to his detention, have “an acquaintance [with him] which is superficial.” They did not know “his name, other names he has used, where he is from and where his family is....” Nor did they know his immigration status. (2) “[N]othing in the witnesses’ testimony suggests that defendant would be amenable to supervision by any of them.”

Nonetheless, the Court of Appeals, which has no firsthand knowledge of the defendant or of his witnesses, revokes the district court’s order of detention. Do my colleagues know something that the district court does not? Yes: They know that this “international human rights worker” and advocate for the Kurds of Turkey, who might be deported to Turkey where, he claims, he would be persecuted, would not, if released pending trial, flee in pursuit of personal safety and the opportunity to continue his human rights work from another eapitol, because that would do “immense harm to [the] reputation” of the two acquaintances who vouchsafed his appearance. This is nothing more than a leap of faith on the part of my colleagues.

The court devotes most of its opinion to the claim that the district court could have devised “some combination of conditions” calibrated reasonably to assure that the defendant would not flee — another leap of faith, it seems, for the defendant proposed no such combination of conditions, the district court concluded none exists, and the Court of Appeals itself is silent upon what that combination might be. In any event, having made that argument, the court then revokes the detention order unconditionally, thereby conferring upon the defendant more relief than the court has tried to justify and indeed more than the defendant has requested. The defendant at least proposed that he be released into the custody of one of his two acquaintances. By omission, the court has rejected even that slight concession by the defendant to the concerns expressed not only by the Government but by the magistrate and the district judge as well.

The court explains its decision to “revoke the district court’s detention order entirely rather than remanding for further proceedings” as an effort to avoid interfering with proceedings now pending in California. Releasing the defendant to the custody of his sponsors, however, as he proposed, would not interfere with the California proceedings at all. Moreover, the court’s apparent complacency about the Government’s ability to retain custody of the defendant in California is unwarranted. First, the California hearing has already been stayed once, and we have no way of knowing when it will be completed; in the interim the defendant could, he argues, be released on the ground that the detainer has expired. Second, the inclination of the INS to pursue the defendant’s deportation is entirely irrelevant to our responsibility to assure that the defendant does not flee in contemplation of his possible deportation. Third, the district court expressly deferred to the judgment of the California magistrate; even if we were to affirm the district court, therefore, the Government would still be obliged to make its case in yet another forum or, if necessary, to invoke whatever detention arrangements are permitted under the deportation provisions of the Immigration and Naturalization Act.

Why my colleagues take it upon themselves to become advocates for the defendant — who is zealously represented by counsel of his own — is a mystery to me. One thing is clear, though: In view of the record, the district court was well within what the court acknowledges is “the large discretion normally accorded the trial court in this area.”

      . In the event that appellant is released in the wake of this order, the INS may request the criminal justice agency now holding appellant to "maintain custody of the alien for a period not to exceed forty-eight hours, in order to permit assumption of custody by the Service." 8 C.F.R. § 242.2(a)(4). In a supplemental memorandum to this court, the government states that it "has no representations to make to the Court about whether the INS intends to take appellant into custody. The fact that a detainer has been lodged does not mean appellant necessarily will be taken into custody by the INS if released by this Court.” Appellee’s Supplemental Memorandum in Opposition to Appellant’s Motion for Release Pending Appeal, at 4 n. 1.

      . He subsequently made two name changes as to which he notified the passport authorities — the last one being a politically significant appellation comparable to Malcolm X or David Ben Gurion, names adopted by mission-oriented leaders of other cultures.

      . We recognize that appellant is currently being held in the Central District of California. Counsel for the government has advised us that a pretrial hearing is scheduled for Wednesday, May 15, 1996. We therefore revoke the district court's detention order entirely rather than remanding for further proceedings, since another hearing in the District Court for the District of Columbia would simply interfere with the California proceedings.