FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

A LF R ED C O P ELA

ND , AKA Charles Alfred Copeland

Petitioner-Appellee
,

v

.

C HAR L E S L. R

Y A N ; A T T O R

NEY G E NER AL O F T HE S TAT E O F A R I Z ON A , Respondents-Appellants. No. 16-15849

D.C. No. 2:13-cv-02278- PGR

OPINION

Appeal from

the United States District Court f or the District of Arizona Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Subm itted February 15, 2017 San Francisco, California

Filed March 28, 2017

Before: Marsha S. Berzon and Richard R. Clifton, Circuit Judges, and Marvin J. Garbis, * District Judge.

Opinion by Judge Clifton; Concurrence by Judge Berzon

* The Honorable Marvin J. Garbis, United States District Judge for the District of Maryland, sitting by designation.C O P E LA ND V

. R Y A N 2

SUMMARY * *

Habeas Corpus

The panel reversed the district court’s orders requiring an Arizona state corrections official to reim burse a petitioner for depo s i t i on expenses incurred in his pending habeas proceeding under 28 U.S.C. § 2254.

Th e panel h ad interlocutory jurisdiction under th e collateral o rder doctrine, and h eld that a district court cannot order a state to reim

burse an indigent habeas pe t it ioner for deposition expenses in a § 2254 habeas proceeding when, as here, the state did not request the deposition.

The panel rem anded for further proceedings to determ ine whether the petitioner m ay o bt a in reim bursem ent from the federal governm ent under the Crim inal Justice Act.

Concurring in full, Judge Berzon noted that the Suprem e Court h as significantly lim ited the applicability of th e collateral order doctrine in recent years, but that this court’s precedents are not clearly irreconcilable with Suprem e Court law.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.C O P E LA ND V

. R Y A N 3

C OUNSEL

Kristina Reeves (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; John R. Lopez, IV, S olicitor General; Mark Brnovich, Attorney General; Capital Litigation Section, Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellants.

Emm a Isakson (argued) and Lee Stein, Mitchell Stein Carey PC, Phoenix, Arizona, for Petitioner-Appellee.

OPINION

CLIFTON, Circuit Judge:

Respondent Charles L. Ryan, as Director of the Arizona Departm ent of Corrections, appeals the district court’s interlocutory orders requiring him to reim burse Petitioner Alfred C opeland for deposition expe n ses incurred in Copeland’s pending habeas pr o ceeding under 2 8 U.S.C. § 2254. W e have interlocutory jurisdiction under the colla t e r a l order doctrine. W e conclude that a district court cannot order a state to reim burse an indigent habeas petitioner for deposition expenses in a § 2254 h abeas proceeding when, as here, the state did not request the deposition. W e reverse the relevant orders and rem and for further procee d ings to d eterm ine whether Copeland m ay obtain reim b u r sement f ro m the f ederal g overnm ent under the C rim inal Justice Act (CJA), 18 U.S.C. § 3006A.C O P E LA ND V

. R Y A N 4

I. Background

Following a jury trial in an Arizona state court, C opeland

was convicted in February 2002 on ten different s tate crim inal charges. The state court sentenced C o p eland to a total of 118 years’ imprisonm ent.

Eleven y ears later, in Novem ber 2013, Copeland filed in federal court a pro se petition for hab e as c o rpus under 28 U.S.C. § 2 254 challenging his state convictio ns. T o

overcom e § 2254’s one-year statute of lim itations, C opeland alleged “actual innocence” on several counts of the underlying indictm ent. 1 The district court held that C opeland had failed to establish actual innocence on all but two of the
counts of the indictm ent, and ordered an evidentiary hearing

on the rem ai ni ng two counts. In light of the evidentiary hearing and Copeland’s i n digent status, the district court ordered the appointm ent o f counsel for Copeland under the CJA, 18 U .S.C. § 3006 A(a)(1)(2)(B), and Rule 8 (c) of the Rules Governing Section 2254 Cases.

Prior to the evidentiary hearing, the parties contacted two of Copeland’s alleged vict i ms , who had been identified as potential fact witnesses. Both victim s indicated that they no longer lived in Arizona and were unwi l l ing to travel to Arizona to participate i n the hearing. At the suggestion o f Copeland’s appointed counsel, the district court excused the

1 The Antiterrorism and Effective Death P enalty Act of 1996 im poses

a one-year statute of limitations on § 22 5 4 habeas petitions. 2 8 U.S.C. § 2244(d). As an exception to this general rule, courts can consider untim ely federal habeas petitions i f t he petitioner shows “actual innocence” on the challenged convictions. S chlup v. Delo
, 5 13 U.S. 298, 318–23 (1995).C O P E LA ND V

. R Y A N 5

victim s f rom appearing in person at the evidentiary hearing, and instead subpoenaed them to testify via video d epositions
to be taken near their respective h om es outside Arizona. The district court ordered both parties’ counsel to att e nd the depositions.

After the depositions were scheduled, Copeland’s appointed counsel filed two ex parte m otions requesting that the S tate reim

burse Copeland for certain expenses incurred in connection with the out-of-state d epositions. 2 T he district
court granted both applications under F ederal Rule o f Crim inal Procedure 15(d), and ordered the State to reim burse Copeland for (1) “the expenses incurred in the taking o f video depositions of [both wi tn e sses]”; (2) “the reasonable travel and subsistence expenses incident to the attendance o f [Copeland’s] counsel at the depositions,” including airfare, lodging, re ntal cars, and m eals; and (3) “the costs o f attendance of [both witnesses] at the depositions.”

After the district c o urt sum m arily denied the State’s

m otion for re consideration of the reim bursem ent orders, the State tim ely filed this interlocutory appeal.

2 Specifically, Copeland sought reim bursem ent against Responde nt Charles L. Ryan in his official capacity as th e D i re c t o r of t h e Arizona Departm ent of Corrections. S ee Rule 2(a), Rules Governing Section 2254 Cases (requiring petitioner in state custody to “nam e as respondent the
state office r wh o h a s custody”). For sim plicity, we refer to Ryan as the “State.” See Wil l v. Michigan Dep’t of State Police
, 491 U.S. 58, 7 1 (1989) (“[A] suit against a state official in his or her official capacity is not

a suit against the official but r ather i s a suit against the offic i a l ’s o ffice. As such, it is no d i ffe re nt from a suit against the State itself.” (citation

omitted)).C O P E LA ND V

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II. Jurisdiction

Under the final judgm ent rule, appell ate jurisdiction is
custom arily lim ited to “final decisions” o f the district courts. 28 U.S.C. § 1291. Copeland’s habeas petition is still pending before the district court, so there is no final judgm ent in his

case yet. The Stat e contends that we nevertheless have jurisdictio n in this instance under the collateral order doctrine. W e agree that there is collateral order j ur isdiction here. 3

The collateral order doctrine provides a narrow exception
to the final judgm ent rule. Under the collateral order doctrine, an appellate court m ay exercise jurisdiction over an interlocutory ruling when the f ollowing three conditions are

m et: (1) the ruling constitutes a final ruling o n the r e l evant issue; (2) the ruling resolves “im portant questions se par ate fr o m the m erits”; and (3) the ruling is “effectivel y

unr eviewable on appeal from the final judgm ent in the underlying action.” Swi nt v. Chambers Cty. C omm’n
, 514 U.S. 35, 4 2 (1995). Regarding the third condition, “the decisi v e consideration is whether delaying review until the

e ntry of final judgm ent ‘would im peril a substantial public interest’ or ‘som e particular value of a high order.’” Mohawk Indus., Inc. v. Carpenter
, 558 U.S. 100, 107 (2009) (quoting Will v. Hallock
, 5 4 6 U.S. 345, 352–53 (2006)). “In m aking thi s de term ination, we do not engage in an ‘individualized jur isdictional inquiry.’” Id. (quoting Coopers & L ybrand v. Li v esay , 437 U.S. 463, 473 (1978)). Rather, we m ust focu s

on “the entire category to whic h a c l a im belongs,” and

3 Because we have jurisdiction under t he collateral o rder doctrine, w e need not consider the State’s alternative requ e s t th at we i ssue a writ o f

m andam us. See Jackson v. Vasquez
, 1 F .3d 885, 888 n.1 (9th Cir. 1993).C O P E LA ND V

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determ ine whether “the class of claim s, taken as a whole, can be adequately v indicated by oth e r me ans.” Id. (internal quotation m arks om itted).

All three conditions are m et here. As we have previously held, this court has collateral order juris d i ction to review interlocutory orders requiring a g o v ernm ent litigant to pay for litigation exp e nses incurred b y the opposing party. For

exam p le, in Unite d States v. Baker
, 603 F.2d 759, 761–62 (9th Cir. 1979), we exercised jurisdiction under the collateral order doctrine to review a district c o urt o rder requiring the fede r al governm ent to pay, under Federal Rule of Crim inal Procedure 15, the defendant’s att orney’s f ees for expenses incurred in connection with depositions held outside the United States. Sim ilarly, in Wiggins v. Alameda County
, 717 F.2d 466, 467–68 (9th C ir. 19 8 3 )
, we exercised jur i s d i ction to review a district court’s order requiring state prison officials to pay expenses associated with producing and guarding a state p r isoner during the duration o f his federal civil rights trial. In exercising jurisdiction under the collateral order doctrine in Wiggins
, we explain e d th at collateral o rder review wa s appropriate because the order “resolved finally the State’s efforts to avoi d th e costs associated with securing [ the plaintiff’s] presence at the trial of his civil righ t s action,” and that “[s]uch an allocation o f
costs t o the State was com pletely collateral to the issues raised in the underlying civil rights suit.” Id. at 468. 4

4 O ur approach is consistent with that of other circuits. See United States v. H

o rn , 29 F.3d 754, 768–69 (1st Cir. 1994) ( exercising jurisdiction to review a district court order r equiring th e g overnm ent to pay attorney’s fees as a sanction for discovery misconduct); United States v. Rogalsky , 575 F.2d 457, 459 (3d Cir. 1978) (exercising jurisdiction to review a district court order requ i ri n g th e g overnm ent to pay under the CJA expenses incurred in connection w ith the psychiatric exam ination o fC O P E LA ND V

. R Y A N 8

There is no reason to deviate from these authorities here. As in Baker and Wiggins
, the State challenges only the district court’s orders requiring the State to reim burse Copeland for his deposition expenses. As requ i red for collateral o rder review, the district court’s rei m bursem ent orders constituted the final ruling on Copeland’s right to seek reim bursem ent from the State, the orders were separate from the m erits o f Co peland’s habeas petition, and the orders would be effectiv e ly unreviewable o n appeal from a final judgm ent on Copeland’s h abeas petition. See Swint
, 514 U.S. at 42.

Further, when viewing th e St ate’s claim as belonging to

a “class of claim s, tak en as a whole,” it is clear that this category o f claim s cannot be “adequately vindicated by other

m eans.” Mohawk Industries
, 558 U.S. at 107. In this appeal, the State challenges o rders by the district court requiring the expenditure of public funds to reimburse an indigent habeas petitioner for certain litigation expenses. If r ev i e w of the reim bursem ent orders were delayed until af ter f in al ju dgm ent, the State wou ld be unable to collect from the petitioner the

am ounts it already p aid out, even if the orders w ere reversed

on appeal. Th e p r e m ise of the orders was that Copeland is indigent and does not currently have the m oney to m ake the
paym ents. He is a prisoner, so i t cannot be assum ed that he would in the m eantim e c o me into funds sufficient to reim burse the State f

or the expense s

. Thus, as a p ractical

m atter, delaying review until a f ter f in al j u dgm ent would leave the State with ess e nt i a l ly no recourse to vindicate its “substantial public interest” in p rotecting the state fisc ag ain st the unauthorized expenditure of public f unds. Will
, 546 U.S.

an indigent defendant).C O P E LA ND V

. R Y A N 9

at 3 53. Collateral order jurisdiction is therefore appropriate here.

III. Discussion

W e review de novo the district court’s determ ination that Copeland is entitled to reim bursem ent f

rom th e S tate under Federal R ule of Crim inal Procedure 15(d). See U nited States

v. Fort
, 472 F.3d 1106, 1109 (9th Cir. 2007) (“W e review de

novo a district court’s interpretation o f the Federal Rules o f C rimin al P ro cedure.” (citing United S ta tes v. N a va rro V ia yra , 365 F.3d 790, 793 (9th Cir. 2004)).

On appeal, the St at e challenges the district court’s reim bursem ent orders on two independent grounds: (1) the reim bursem ent orders were unlawful because there are n o statutes o r ru le s authorizing the district court to order the State to reim

burse Copeland for the deposition expenses, and (2) the orders abrogated state sovereignty in violation of the Eleventh Am endm ent of the U.S. Constitution. W e agre e with the State on the first ground. T he district court w as not authorized to order the State to pay for expenses o f depositions i n a § 2254 habeas proceeding that were not requested by the State. Applying the principle o f constitutional avoidance, we decline to consider whether the reim bursem ent orders violated the Eleventh Am endm ent. Overstreet v. United Bhd. of Carpe n te r s & Joiners of Am., Loc. Union No. 1506 , 409 F.3d 1199, 1211 (9th Cir. 2005).

A. The district court cannot order reimbursement by the State.

As a general rule, federal courts do n ot have authority to order one party in civil litigation to p ay th e e xpenses o f theC O P E LA ND V

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other party. See Carbonell v. INS
, 429 F.3d 894, 897–98 (9th Cir. 2 005) (“[L]itigants ordinarily are required to bear the
expenses of their litigation unless a s tatute or private
agreem ent provides otherwise.”); see also Do e v

. United States
, 112 F.R.D. 183, 184 (S.D.N.Y. 1986) (“Litigants generally b ear their own d eposition expense s i n itially. The exceptions to this rule are f ew. ”)

. Co peland argues that the district court was authorized to issue the reim bursem ent orders under b oth Federal R ule of Crim inal Procedure 15(d) and the Rule 6(c) of the Rules Governing Section 2254 Cases. W e disagree.

1. Federal Rule of Crim inal Procedure 15(d)

Federal Rule of C rim inal Procedure 1 5 con c erns depositions i n federal crim inal proceedings. Rule 15(d), entitled “Expenses,” provides:

I f the d eposition was requested b y th e gov ernm ent, the court m ay

– or if the defendant is unable to bear the d e position
expenses, the court m ust – order the
governm ent to pay:

(1) any reasonable travel and subsistence expenses of the defendant and the defendant’s attorney to attend the deposition; and

(2) the costs of the de position transcript.

Copeland argues that because the Federal Rules of Crim inal Procedure apply to § 2254 habeas proceedings, he m ayC O P E LA ND V

. R Y A N 11

recover his d eposition expenses from th e State under Rule 15(d). That argum ent fails on multiple grounds.

To begin with, the Federal Rules of Crim inal Pr o cedure do not apply to habeas proceedings brought by state prisoners under 2 8 U.S.C. § 2 2 54. Although h abeas actions are filed by
persons previousl y convicted o f crim inal offenses to challenge th o s e co nv ictio n s (o r the effects of the convictions), habeas co r

pus proceedings are “civil in n ature,” not “crim inal.” Mayle v. Felix
, 5 45 U.S. 6 4 4, 654 n.4 (2005). Federal habeas actions brought by state prisoners are brought under 28 U .S.C. § 2254 and are governed by a discrete set o f rules, nam ely the Rules G overning Section 2254 Cases in the United States D istrict C ourts. Id

. at 654. A different statute, 28 U.S.C. § 2255, pertains to habeas proceedings brought by
per s o n s convicted of federal crim es, and those cases are governed b y a d i ffe r ent set of rules, the Rules Governing Section 2255 Cases in the United States District Courts.

When a petitioner challenges a federal c onviction under § 2255, discovery m ay b e governed by both the F ederal Rules of Civil Procedure and the Federal Rules of Crim inal Procedure. S

e e Rule 6(a), Rules Governing Section 2255 Cases (“A judge m ay, for goo d c ause, authorize a party to

con du ct discovery under the Federal Rules of Crim inal Procedure o r Civil Procedure, or in accordan ce w ith the practices and principles of law.”); se e also Rule 1 2, Rules Governing Section 2255 Cases (“The Federal Rules o f Civil Procedure and the Federal Rules of C ri mi n al Procedure, to the extent that they are n ot inconsistent with any statutory provisions or these rules, m ay be applied t o a p roceeding under these rules.”).C O P E LA ND V

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By contrast, when the p etitioner cha l lenges a state conviction under § 2254, discovery is instead governed by the Federal Rules of Civil Procedure. S ee R ule 6(a), Rules Gov erning Section 2254 Cases (“A judge m ay, for good

c ause, authorize a party to conduct discovery under th e Federal Rules of Civil Procedure

. . . .”); Ru l e 6(a), Rules Governing Section 2254 Cases, advisory comm ittee’s note to 1976 adoption ( “This rule prescribes the procedures governing discovery in h abeas corpus cases. Subdivision (a) provides that any p arty m ay utilize the processes of discovery available under the Federal Rules o f Civil Procedure

. . . if, and t o the extent that, the judge allows.”); see also Rule 12, Rules Governing Section 2254 C ases (“The Federal R ules o f Civil Procedure, to the extent that they are not incons istent with any statutory p rovisions or these rules, m ay be applied to a proceeding under these rules.”).

Copeland is a state priso n er, so his habeas action was brought under § 2254. Under the plain language of the Rules Governing Section 2254 Cases, only the Federal Rules o f Civil Procedure apply to § 2254 habeas proceedings. The Federal Rules of Crim inal Procedure do not apply to § 2254 habeas proceedings.

Cop e l an d raises several argum ents in response, all o f which are based on the sam e premi s e : because there are no authorities expressly p roviding th at the Federal Rules o f Cri mi n a l Procedure do not apply to § 2 254 habeas proceedings, the Federal Rules of Crim inal Procedure apply here. This argum ent conflicts wi th a basic principle o f statutory interpretation. Under the m axim of expressio unius
est exclusio alterius
, there is a presum ption “that when a statute designates certain persons, things, or manners o f operation, all om issions should be understood as exclusions.”C O P E LA ND V

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Boudette v. Barnette
, 923 F.2d 754, 756–57 (9th Cir. 1991);

see Antonin Scali a & Bryan A. G arner, Reading L a w: The Interpretation of

Legal Texts 1 07-111 (20 1 2 ) (id entifying this

as the “Negative-Imp lication Canon”). Here, Rule 6 ( a ) and Rule 12 of the Rules G overning Section 2254 Cases provide only that the Federal R u les of Ci vil Procedure govern discovery in § 2254 habeas procee d i n gs. Applying this principle o f statutory interpretation, we m ust presum e that the Federal Rules of Crim inal Procedure do not apply to § 2254 habeas proceedings.

This presum

p tion is confirm ed by the fact, as detailed above, that Rule 6(a) and Rule 12 of the Rules Governing Section 2255 Cases expressly p ro vide that b oth the Federal Rules of C ivil Procedure an d the Federal Rules of Crim inal Procedure apply in § 2 255 habeas p r o c eedings. The difference between the two sets o f ru l e s cannot be shrugged off as an accident or o v ersight. Copeland has provided no

reason why we should n o t app ly this presum ption that the Federal Rules of Crim inal Procedure do not apply to § 2254 habeas proceedings, an d we see n one. See United States v. Bert
, 292 F.3 d 6 4 9
, 6 52 n.12 (9th Cir. 2002) (declining to apply presum

ption wh e n “the m echanical application o f expressio unius is contrary t o both logic and legislative purpose”).

Th at the Federal Rules o f Crim inal Procedure do n o t app l y to this case is fatal to Copeland’s argum ent that they authorize the district court’s o rders. Copeland does not argueC O P E LA ND V

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that there is anything in the Federal Rules of Civil Procedure that supports the district court’s orders here. 5

I t would, m oreover, take a strained interpretatio n of Federal Rule of Crim inal P rocedure 15(d) to support the order i n th i s case, even if that rule did apply. Rule 15(d) refers t o “the governm ent,” but w ithin the F ederal Ru les of Crim inal Procedure that t e rm necessarily refers to the federal
governm ent , as those rules apply only to crim inal prosecutions brought by the federal governm ent. S ee Fed. R. Cr i m. P. 1(a)(1). C opeland has p rovided no reason why we should conclude that these rules were ever intended to apply
to a state in circum stances like the one here, and w e can see

none.

Ru l e 1 5(d) is also by its express term s applicable wh e n “the deposition was requested by the governm ent.” That was not the case here. As w e discuss in connection with Rule 6(c) of the Rules G overning Section 2254 Cases, imm ediately below, that m akes a difference.

2. Rule 6(c) of the Rules Governing Section 2254 C ases

C o p eland argu es th at th e district court was also auth o rized
t o issue the reim

bursem ent orders under Rule 6 (c) of the Rules Go v erning Section 2254 Cases. The language of the rule says otherwise.

5 The only p rovision in the Federal Rules of Civil Procedure expressly authorizing the re c overy o f deposition expenses is Rule 30(g), which allo w s a party to recover certain deposition expenses when the party noticing the deposition either fa iled to attend the deposition or failed to subpoena a nonparty deponent who i n turn f ailed to attend the deposition. That authorization does not apply here.C O P E LA ND V

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Rul e 6(c), entitled “Deposition Expenses,” provides as follows:

I f th e respondent is granted leave to take a deposition, the judge m ay requi r e the

res pondent to p ay the travel expenses, subsistenc e expenses, and fees o f the petitioner’s attorney to attend the deposition.

The “petitioner” in a habeas case under § 2254 is the prisoner challenging h is conviction o r confinem ent, in this case, Copeland. The “respondent” is the state or its agent, such as the warden of the prison where petitioner is held. Rule 2(a), Rules Governing Section 2254 C ases. H ere, the respondents

are the Di r e ct or of the Arizona Departm ent of Corrections and the Arizona Attorney General.

The rule says in so m any words that th e State (or its agent) m ay be required t o p ay deposition expenses “[i]f the respondent [ i.e.
, the State] is grante d l eave to take a deposition.” In that sense, Rule 6(c) of the Rules Governing Section 2 254 Cases is sim ilar to Federal Rule of Crim inal Procedure 15(d), discussed above, in that both authorize the

c ourt to order the governm ent to pay deposition exp en s e s when the governm ent requests the deposition.

But the State did not request the depositions at issue here. After the two witne s s e s declined to travel to Arizona to testify, it was Copelan d ’ s c ounsel who suggested that video depositions be taken instead. The district court’s orders recite that they are in response to Copeland’ s e x p arte m otion seeking perm ission to travel outside Arizona for depositions. The district court m ade no finding that the State sought leave
to take the depositions, and Copeland does not conte n d thatC O P E LA ND V

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it did. It appears that the testim ony of these witnes s es was sought by Copeland to support his claim of actual innocence

on certain charges, and the burden of establishing innocence in this proceeding lies with Copeland.

Rule 6(c) authorizes the court to require the State to pay the expenses “if” the deposition is r e qu e s ted b y the State. Rule 6(c), Rul e s Governing Section 2254 Cases. The interpretation urged by Copeland would elim inate that

con d i t i o n

. If the rule were intended to perm it the court to require the State to pay f

o r the deposition regardless o f which party sought the deposition, then the first ten words would not have been included in the rule. W e are not at l ib e rty t o edit them out. The m axim expressio unius est exclusio a lte rius
, discussed above, at 12–13, applies h e r e as well. The

om ission of authority to o r de r th e State to pay deposition
expenses when the deposition was requested by a party other than the State should be understood to exclude that authority.

B. The dis trict court may consider whether Copeland’s deposition expenses are reimbursable by th e federal government.

Although we disagree with Copeland that his deposition
expenses w ere reim

bursable by the St at e, his deposition
expense s n evertheless appear reim bursable by the federal
governm ent under the CJA. The dis tr ic t court ordered the appointm ent of habe a s counsel under the CJA to represent Co p eland in connection with the evidentiary hearing on hi s “actual innocence” claim s. District courts can order the federal governm ent to reim b urse an indigent habeas petitioner’s deposition expenses when the petitioner q u alifies for the appointm ent of habeas counsel under th e CJ A. See 18 U.S.C. § 3006A(a)(2)(B) (providing for the ap p o i ntm entC O P E LA ND V

. R Y A N 17

of counsel “for any financially e l i gi b l e person who

. . . is seeking relief under section

. . . 2 254

. . . of title 28”); id. §§ 3006A(d)(1), (4) (“Attorneys m ay be reim bursed for
exp en ses reason ab ly in cu

rred” as d etermin ed by “[t]he United States m agistrate o r the court

. . . .”); Guidelines for Adm inistering the Crim inal Justice Act §§ 320.40.20(a), (d) (providing for reim

bursem ent by th e U.S. Departm ent o f Justice of “[e]xp e n ses incurred in the taking of fact witness depositions” and “reasonable travel and subsistence expenses incident to attendance of counsel and the defendant at the deposition”). On rem and, the district court should c o ns i d er whether Copeland qualifies for rei m b ursem ent from the federal governm ent under the CJA.

IV. Conclusion

There are no statutes or rules authorizing the district court to order the St ate t o reim burse Copeland, as an indigent habeas petitioner, fo r deposition expenses in his § 2254 habeas proceeding when, as here, the S tate did not request the depositions. Ac c o rdingly, w e reverse the district court’s orders and rem and for further proceedings.

REVERSED AND REMANDED.

BERZON, Circuit Judge, concurring:

I join Judge C lifton’s opinion. I write separately to note that although our conclusion regarding th e c ollateral order doctrine is corre c t under our precedents, see Wiggins v. Alameda County , 717 F.2d 466, 467–68 (9th Cir. 1983) and United States v. Baker
, 603 F.2d 759, 761–62 (9th Cir. 1979),C O P E LA ND V

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the Suprem e Court h as significantly lim ited the applicability of the collateral order d octrine in recent years. For exam ple, th e Co urt h as held that an order of sanctions under Federal Rule of Civil Procedure 37(a) is n ot imm ediately appealable. See Cunningham v. Hamilton Cty.
, 5 27 U.S. 198, 210 (1999). The Court has also so held with respect to a disclosure order adverse to the attorney-client p rivilege. See Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 112–13 (2009).

I am not sanguine that the collateral o r d e r doctrine still
perm its inter l ocutory review o f a district court’s award o f discovery costs, given the direct ion the Suprem e Court has
t ak e n

. B ut there is no direct conflict between any Suprem e Court case and our precedents, Wiggins and Baker
, such that those cases are “clearly irreconcilable” with Sup r em e Court law. A three-judge p anel would therefore not be justified in departing from those precedents. See Miller v. Gammie
, 335 F.3d 889, 900 (9th Cir. 2003).

W ith these observations, I concur in the opinion in full.