author: KORMAN, District Judge:

text:
    Charles Chukwumeze ELERI, AKA Charles C. Eleri, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
    No. 13-73455
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 8, 2016, Pasadena, California
    Filed March 24, 2017

      Joseph LaCome (argued), San Rafael, California, for Petitioner.
    Colette Jabes Winston (argued), Attorney; Janette L. Allen and Kiley Kane, Senior Litigation Counsel; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, Washington, D.C.; for Respondent.
    Before: JACQUELINE H. NGUYEN and JOHN B. OWENS, Circuit Judges, and EDWARD R. KORMAN, District Judge.

       The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

   OPINION

KORMAN, District Judge:

The issue presénted here is whether the Attorney General has the discretion to grant a waiver of inadmissibility to a conditional permanent resident who has been convicted of an aggravated felony as opposed to a lesser offense involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). In the latter case, the Attorney General may grant a waiver of inadmissibility if “the alien’s denial of admission would result in extreme hardship” to his U.S. citizen spouse. Id. at § 1182(h)(1)(B). Such a waiver is barred, however, if the alien has been convicted of an aggravated felony. Id. at § 1182(h).

Before turning to the specific facts of this case, we provide a brief overview of the statutory scheme as it applies to conditional permanent residents. Specifically, a conditional permanent resident is an alien admitted to the United States for permanent residence on a conditional basis due to, inter alia, his marriage to a U.S. citizen. See 8 U.S.C. § 1186a(a)(l), (h)(1); see also Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir. 2010). “Unless otherwise specified, the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to ... the privilege of residing permanently in the United States as an immigrant.” 8 C.F.R. § 216.1.

An alien must file a petition to eliminate his conditional status within the 90 days before “the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence,” and subsequently attend an interview. 8 U.S.C. § 1186a(c)(l), (d)(2)(A). The petition will be granted, “effective as of the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence,” upon a determination that the alien’s marriage was entered into lawfully, not annulled or terminated except through death of a spouse, and not entered into for the purpose of procuring his admission. Id. at § 1186a(c)(3)(A)-(B), (d)(1)(A). The two-year conditional period prescribed by these provisions “strikes at the fraudulent marriage by the simple passage of time [because] it is difficult to sustain the appearance of a bona fide marriage over a long period.” H.R. Rep. No. 99-906, at 9-10 (1986).

Against this backdrop, we turn to the facts of this case. On March 21, 1995, Charles Chukwumeze Eleri (“Eleri”), a native and citizen of Nigeria, entered the United States as a conditional permanent resident based on his marriage to his first wife, a U.S. citizen. Eleri’s status as a conditional permanent resident was automatically terminated in 1997 due to his failure to file the required petition. 8 C.F.R. § 216.4(a)(6). Removal proceedings were not initiated by the Department of Homeland Security (“DHS”) until 2011— fourteen years later. The apparent impetus for these proceedings was Eleri’s 2009 conviction for forcible rape of a 19-year-old woman with the mental capacity of a 13-year-old girl. In 2012, Eleri’s second wife filed a Form 1-130 visa petition on his behalf. Notwithstanding the pending removal proceedings, the DHS granted the visa petition, which is “the first step in the process towards a ‘family-based adjustment of status.’ ” Montoya v. Holder, 744 F.3d 614, 616 (9th Cir. 2014) (citing Matter of Hashmi, 24 I. & N. Dec. 785, 789 (BIA 2009)).

Appearing before an Immigration Judge (“IJ”), Eleri sought adjustment of status under 8 U.S.C. § 1255(a), in conjunction with a waiver of inadmissibility pursuant to § 1182(h)(1)(B). The IJ found, however, that Eleri’s conviction for rape constituted both an aggravated felony and a crime involving moral turpitude. The IJ thus held that Eleri was not entitled to a waiver óf inadmissibility. On appeal to the Board of Immigration Appeals (“BIA”), Eleri argued that “because he was admitted as a permanent resident on a conditional basis rather than as a lawful permanent resident,” the aggravated felony bar to waiver did not apply to him. In an unpublished decision, the BIA agreed with the IJ’s determination that Eleri was ineligible for a waiver of inadmissibility.

After the BIA affirmed the IJ’s order, Eleri petitioned for review. We have jurisdiction to review de novo questions involving statutory construction. Negrete-Ramirez v. Holder, 741 F.3d 1047, 1050 (9th Cir. 2014).

DISCUSSION

A question of statutory interpretation “begins with the plain language of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009) (citation omitted). “When an examination of the plain language of the statute, its structure, and purpose clearly reveals congressional intent, our judicial inquiry is complete. But if the plain meaning of the statutory text remains unclear after consulting internal indicia of congressional intent, we may then turn to extrinsic indicators, such as legislative history, to help resolve the ambiguity.” Hernandez v. Williams, Zinman & Parham PC, 829 F.3d 1068, 1073 (9th Cir. 2016) (internal quotation marks and citations omitted). Moreover, when a statute is ambiguous and we have the benefit of an administrative agency’s interpretation, we may defer to it if it is “based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Section 1182(h) precludes a waiver of inadmissibility “in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... since the date of such admission the alien has been convicted of an aggravated felony.” In Negrete-Ramirez, we held that “Congress defined the class of those who are barred from seeking a § [1182(h) ] waiver as [permanent residents] who obtained their status prior to or at the time they physically entered into the United States.” 741 F.3d at 1053 (citations omitted). The record reflects that Eleri obtained his status as a conditional permanent resident on February 3, 1995, prior to the date of his entry into the United States on March 21, 1995.

. Nevertheless, Eleri argues that he did not obtain permanent resident status because he was admitted as a conditional permanent resident. Thus, he did not fall within the category of “an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1182(h). Put another way, he argues that permanent residents are not eligible for a waiver of inadmissibility if they commit an aggravated felony, while those who are admitted as permanent residents on a conditional basis are eligible for such a waiver.

The implausibility of this argument is not unlike that of the one made in Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010). There, an alien had “acquired permanent residence through fraud or misrepresentation.” Id. at 1095. The alien argued that, because of the fraud and misrepresentation, “he was never lawfully admitted [to the United States] for the purpose of the [aggravated felony] bar.” Id. Invoking the principle that “when possible, we interpret statutes so as to preclude absurd results,” Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc), we held that “[t]here is no reason why Congress would give a pass to non-citizens who had fraudulently obtained [permanent resident] status while barring from relief non-citizens who had legitimately obtained [permanent resident] status.” Hing Sum, 602 F.3d at 1097.

We likewise see no reason in this case why Congress would draw Eleri’s desired distinction between permanent residents and conditional permanent residents for the purpose of determining eligibility for a waiver of inadmissibility. Indeed, in Paek v. Attorney General of the United States, the Third Circuit held that the “language of the INA [Immigration and Nationality Act] indicates that an alien admitted as a [conditional permanent resident] constitutes ‘an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.’ ” 793 F.3d 330, 333 (3d Cir. 2015) (quoting 8 U.S.C. § 1182(h)). In doing so, Paek affirmed the BIA’s published decision to that effect. Id.; see Matter of Paek, 26 I. & N. Dec. 403, 407 (BIA 2014). Paek also pointed to the multiple statutory references to the “second anniversary of the alien’s obtaining the status of lawful admission for permanent residence as being synonymous with the second anniversary of the alien’s admission as a [conditional permanent resident].” 793 F.3d at 335 (internal quotation marks and citations omitted). Moreover, Paek reasoned that the INA “repeatedly discusses [conditional permanent residents] having their status of lawful admission for permanent residence ‘terminated,’ ” which strongly suggests that conditional permanent residents already possess permanent resident status, because otherwise such status could not be terminated. Id. at 336 (citations omitted).

We find the Third Circuit’s reasoning persuasive and adopt its holding that an alien admitted as a conditional permanent resident constitutes an “alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1182(h). While a conditional permanent resident has permanent resident status on a conditional basis, he nonetheless enjoys the full rights and privileges of such status. Indeed, as we observed earlier, a DHS regulation provides that “the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to ... the privilege of residing permanently in the United States as an immigrant.” 8 C.F.R. § 216.1.

Moreover, Eleri’s argument places undue weight on the term “conditional.” El-eri’s status is not materially different from the status of what the Third Circuit has called a “full-fledged” permanent resident, Gallimore v. Attorney General of the United States, 619 F.3d 216, 229 (3d Cir. 2010), or even that of a naturalized citizen. Each may maintain their status on the condition that they did not obtain it as a result of fraud. Thus, naturalized citizens may have their citizenship revoked for willful misrepresentations during the naturalization process, 8 U.S.C. § 1451(a), and permanent residents may be deported for any number of reasons, including document fraud during the application process for permanent residency. See 8 U.S.C. § 1227(a)(3)(C)(i); 8 U.S.C. § 1324c(a). Notwithstanding El-eri’s status as a “conditional” permanent resident, the condition is simply that, like the “full-fledged” permanent resident and the naturalized citizen, he has not obtained his status as a result of fraud during the application process. See 8 U.S.C. § 1186a(b)(l); 8 U.S.C. § 1227(a)(l)(D)(i).

Thus, as the Third Circuit has explained, the INA “equates conditional [permanent residents] with ‘full-fledged’ [permanent residents], except to the extent — but only to the extent — that § 1186a prescribes additional obligations.” Gallimore, 619 F.3d at 229. The “additional obligations,” however, only pertain to procedures to ensure that the marriage that afforded an alien the status of a conditional permanent resident was not fraudulent. See 8 U.S.C. § 1186a(a)-(c). “And so long as a conditional [permanent resident] complies with those obligations, they do not affect the alien’s ‘privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws.’ ” Gallimore, 619 F.3d at 229 (quoting 8 C.F.R. § 216.1).

Lastly, even if the statutory language is “ambiguous with respect to the specific issue,” the BIA’s interpretation is “based on a permissible construction of the statute[s],” Chevron, 467 U.S. at 843, 104 S.Ct. 2778, and “[w]e apply Chevron deference to the [BIA’s] interpretations of ambiguous immigration statutes, if the [BIA’s] decision is a published decision or an unpublished decision directly controlled by [a] published decision.” Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir. 2015) (internal quotation marks and citations omitted). While the BIA’s decision in this case was unpublished, the BIA did publish a more recent decision in another case, which held that an alien who was admitted as a conditional permanent resident was subject to the aggravated felony bar to waiver. See Paek, 26 I. & N. Dec. at 407.

In the present case, Eleri was admitted to the United States as a conditional permanent resident in March 1995. Eleri thus constitutes “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1182(h). As such, Eleri is subject to the aggravated felony bar to waiver.

CONCLUSION

Accordingly, we DENY the petition for review.


source: Caselaw Access Project

author: IKUTA, Circuit Judge:

license: Public Domain

text:
    IN RE Charles Francis GUGLIUZZA, II, Debtor, Charles Francis Gugliuzza, II, Appellant, v. Federal Trade Commission, Appellee.
    No. 15-55510
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 7, 2016, Pasadena, California
    Filed March 24, 2017

      Michael B. Reynolds (argued) and Todd E. Lundell, Snell & Wilmer LLP, Costa Mesa, California; Blaine H. Evanson, M. Sean Royall, and Theodore J. Boutrous, Jr., Gibson Dunn & Crutcher LLP, Los Angeles, California; for Appellant.
    Michele Arington (argued), Kimberly Nelson, and Megan Bartley, Attorneys; Joel Marcus, Director of Litigation; Federal Trade Commission, Washington, D.C., for Appellee.
    Before: CONSUELO M. CALLAHAN, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.
   OPINION

IKUTA, Circuit Judge:

Charles Gugliuzza appeals the district court’s order reversing a bankruptcy court’s grant of summary judgment and remanding for further fact-finding. We conclude that we lack jurisdiction and therefore dismiss the appeal.

I

The Federal Trade Commission (FTC) successfully brought an enforcement action against Charles Gugliuzza and his former company, Commerce Planet, alleging violations of Section 5 of the FTC Act, 15 U.S.C. § 45(a). See FTC v. Commerce Planet, Inc., 878 F.Supp.2d 1048 (C.D. Cal. 2012). In assessing Gugliuzza’s liability, the district court relied on the test set forth by the FTC in In re Cliffdale Assocs., 103 F.T.C. 110 (1984), which we have generally adopted, see FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994). Under this test, “an act or practice [is] deceptive if, first, there is a representation, omission, or practice that, second, is likely to mislead consumers acting reasonably under the circumstances, and third, the representation, omission, or practice is material.” Id. (quoting Cliffdale Assocs., 103 F.T.C. at 164-65). Applying this standard, the district court held that Commerce Planet had engaged in deceptive acts and further determined that Gugliuzza could be held individually liable for those violations. See Commerce Planet, Inc., 878 F.Supp.2d at 1055. In addition to enjoining Gugliuzza from further violations of the FTC Act, the district court awarded the FTC $18.2 million in restitution. Id. at 1092.

In the wake of this restitution award, Gugliuzza filed a voluntary petition for bankruptcy under Chapter 7 in November 2012. “Generally, a debtor is permitted to discharge all debts that arose before the filing of his bankruptcy petition,” Hawkins v. Franchise Tax Bd., 769 F.3d 662, 666 (9th Cir. 2014) (citing 11 U.S.C. § 727(b)), but “the Bankruptcy Code provides for certain exceptions to that general rule,” id. (citing 11 U.S.C. § 523). One such exception is that debts obtained by “false pretenses, a false representation, or actual fraud” are not dischargeable. 11 U.S.C. § 523(a)(2)(A). To establish nondischarge-ability under § 523(a)(2)(A), a creditor must prove five elements: “(1) misrepresentation, fraudulent omission or deceptive conduct by the debtor; (2) knowledge of the falsity or deceptiveness of his statement or conduct; (3) an intent to deceive; (4) justifiable reliance by the creditor on the debtor’s statement or conduct; and (5) damage to the creditor proximately caused by its reliance on the debtor’s statement or conduct.” Turtle Rock Meadows Homeowners Ass’n v. Slyman (In re Slyman), 234 F.3d 1081, 1085 (9th Cir. 2000).

In bankruptcy court, the FTC commenced an adversary proceeding, which is “essentially [a] full civil lawsuit[] carried out under the umbrella of the bankruptcy case,” Bullard v. Blue Hills Bank, — U.S. -, 135 S.Ct. 1686, 1694, 191 L.Ed.2d 621 (2015), seeking a determination that Gugliuzza’s restitution debt was nondischargeable under 11 U.S.C. § 523(a)(2)(A). The FTC moved for summary judgment, contending that Commerce Planet’s, determination that Gugliuz-za had engaged in deceptive practices for purposes of the FTC Act foreclosed him from relitigating the five elements necessary to establish that the debt was obtained by “false pretenses, a false representation, or actual fraud” such that it was not dischargeable under § 523(a)(2)(A). See Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 872 (9th Cir. 2005) (“[C]ollateral estoppel principles ... apply in discharge exception proceedings pursuant to § 523(a).” (quoting Grogan v. Garner, 498 U.S. 279, 284 n.11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991))). The bankruptcy court granted the FTC’s motion and entered judgment in the FTC’s favor.

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition[.]

On appeal, the district court affirmed the bankruptcy court in part, reversed in part, and remanded. See FTC v. Gugliuzza (In re Gugliuzza), 527 B.R. 370, 373 (C.D. Cal. 2015). It held that the bankruptcy court correctly concluded that Gugliuzza was collaterally estopped from relitigating four of the five elements necessary to prove nondischargeability under § 523(a)(2)(A) (specifically, the elements of misrepresentation, knowledge, justifiable reliance, and damages), but had erred in holding that Gugliuzza was collaterally es-topped from relitigating the issue of his intent to deceive consumers. Accordingly, the district court remanded the case to the bankruptcy court for further fact-finding on the issue of Gugliuzza’s intent to deceive. Gugliuzza timely appealed this order. He contends on appeal that the district court and bankruptcy court erred in holding that collateral estoppel precluded him from litigating the elements of misrepresentation, justifiable reliance, and damages.

II

We must first consider whether we have jurisdiction to entertain Gugliuzza’s appeal. See Sahagun v. Landmark Fence Co. (In re Landmark Fence Co.), 801 F.3d 1099, 1102 (9th Cir. 2015). We have jurisdiction to determine our jurisdiction, Bunyan v. United States (In re Bunyan), 354 F.3d 1149, 1152 (9th Cir. 2004), and consider the question de novo, Silver Sage Partners, Ltd. v. City of Desert Hot Springs (In re City of Desert Hot Springs), 339 F.3d 782, 787 (9th Cir. 2003).

A

We have authority to hear appeals in bankruptcy cases under three different jurisdiction-conferring provisions, 28 U.S.C. §§ 1291,1292, and 158(d)(1).

First, 28 U.S.C. § 1291 provides: “[t]he courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States ..., except where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1291. This section gives us “jurisdiction over appeals from ‘final decisions by the district courts’ acting in any capacity.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).

In the bankruptcy context, we have jurisdiction under § 1291 over appeals from rulings made by a district court when it presides directly over a bankruptcy case. See, e.g., Klenske v. Goo (In re Manoa Fin. Co.), 781 F.2d 1370, 1372 (9th Cir. 1986). We also have jurisdiction under § 1291 over appeals taken from “final decisions” made by a district court when it sits in a bankruptcy-appellate capacity. See Germain, 503 U.S. at 253, 112 S.Ct. 1146. While district courts normally do not act as appellate bodies, they may do so in the bankruptcy context. Congress gave district courts original jurisdiction over bankruptcy proceedings, see 28 U.S.C. § 1334, but also authorized them to refer bankruptcy cases to bankruptcy judges in the first instance, see id. § 157. In fact, all districts have adopted “a general order of reference to send all bankruptcy cases to the bankruptcy judges for the district.” Schulman v. Cal. State Water Res. Control Bd. (In re Lazar), 200 B.R. 358, 366 (Bankr. C.D. Cal. 1996). After making such a reference, district courts may hear appeals “from final judgments, orders, and decrees ... of bankruptcy judges entered in cases and proceedings.” 28 U.S.C. § 158(a). Section 158(a) also gives district courts, sitting in an appellate capacity, jurisdiction over “interlocutory orders and decrees.”

The scope of our jurisdiction under § 1291 is the same for all district court rulings. See Klestadt & Winters, LLP v. Cangelosi, 672 F.3d 809, 815 (9th Cir. 2012). Regardless of context, in determining whether the district court decision is final under § 1291, “we ask whether the decision presented for review ‘ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment.’ ” Congrejo Invs., LLC v. Mann (In re Bender), 586 F.3d 1159, 1163 (9th Cir. 2009) (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)).

A second source of jurisdiction is provided by § 1292, which authorizes appellate courts to hear appeals taken from all interlocutory orders of specified types, 28 U.S.C. § 1292(a), as well as appeals of interlocutory orders that are certified by the district court to meet specified criteria, id. § 1292(b). This jurisdiction includes the authority to hear appeals from a district court’s interlocutory orders issued in a bankruptcy-appellate capacity. See Germain, 503 U.S. at 254, 112 S.Ct. 1146 (“So long as a party to a proceeding or case in bankruptcy meets the conditions imposed by § 1292, a court of appeals may rely on that statute as a basis for jurisdiction.”).

In contrast to the grants of general jurisdiction under 28 U.S.C. § 1291 and § 1292, 28 U.S.C. § 158(d) gives us jurisdiction specific to bankruptcy decisions of district courts and decisions of three-judge bankruptcy appellate panels (or BAPs). Under § 158(d)(1), “[t]he courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) [defining the district courts’ jurisdiction] and (b) [defining the jurisdiction of the bankruptcy appellate panels] of this section.” This language limits our appellate jurisdiction under § 158(d)(1) to decisions, judgments, orders, and decrees that are “final”; we have no authority under section 158(d)(1) to consider interlocutory orders and decrees. See Germain, 503 U.S. at 252, 112 5.Ct. 1146 (holding that “§ 158 did not confer jurisdiction on the Court of Appeals” over an interlocutory order entered by a district court, as neither § 158(d)(1) “nor any other part of § 158 mentions interlocutory orders entered by the district courts in bankruptcy”).

B

The Supreme Court has recently provided guidance on how to interpret the scope of jurisdiction granted by § 158. See Bullard, — U.S. -, 135 S.Ct. 1686, 191 L.Ed.2d 621. In Bullard, a bankruptcy court declined to confirm a debtor’s proposed plan of reorganization in a Chapter 13 case. Id. at 1691. The debtor appealed the denial to the First Circuit’s BAP, which “concluded that the order denying plan confirmation was not final because [the debtor] was ‘free to propose an alternate plan.’ ” Id. (quoting Bullard v. Hyde Park Sav. Bank (In re Bullard), 494 B.R. 92, 95 (1st Cir. BAP 2013)). The BAP therefore held that it did not have jurisdiction under § 158(a)(1), which grants jurisdiction over only “final judgments, orders, and decrees” of bankruptcy judges entered in cases and proceedings. Nonetheless, the BAP granted the debtor leave to appeal an interlocutory order under 28 U.S.C. § 158(a)(3) and affirmed the bankruptcy court. Id.

The debtor then appealed to the First Circuit, which dismissed the appeal for lack of jurisdiction. Id. The First Circuit reasoned that the denial of a plan confirmation was not a final order, so it lacked jurisdiction under § 158(d)(1), and the BAP had not certified the interlocutory order for review, so it also lacked jurisdiction under § 158(d)(2). Id.

On appeal to the Supreme Court, the debtor contended that the First Circuit had jurisdiction under § 158(d) because orders denying confirmation should be considered final orders. The Supreme Court rejected this argument. According to the Court, the bankruptcy court’s order denying plan confirmation was not a final order entered in a proceeding. Therefore, the First Circuit lacked jurisdiction to consider it. Bullard explained that in “ordinary civil litigation, a case in federal district court culminates in a ‘final decisio[n],’ a ruling ‘by which a district court disassociates itself from a case.’ ” Id. (alteration in original) (quoting 28 U.S.C. § 1291; Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)). As a general rule, a party can appeal as of right only from the final decision that ends the case. Id. “This rule reflects the conclusion that ‘[pjermitting piecemeal, prejudgment appeals ... undermines efficient judicial administration and encroaches upon the prerogatives of district court judges, who play a special role in managing ongoing litigation.’ ” Id. at 1691-92 (alterations in original) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458, (2009)).

The Court acknowledged that the “rules are different in bankruptcy,” but clarified that this difference arises because “[a] bankruptcy case involves ‘an aggregation of individual controversies,’ many of which would exist as stand-alone lawsuits but for the bankrupt status of the debtor.” Id. at 1692 (quoting 1 Alan N. Resnick <& Henry J. Sommer, Collier on Bankruptcy ¶ 5.08[l][b], at 5-42 (16th ed. 2014)). That, is, because bankruptcy cases generally involve multiple parties asserting a range of different claims, many of which are litigated in discrete proceedings (including adversary actions), “Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.” Id. (quoting Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651, 657 n.3, 126 S.Ct. 2105, 165 L.Ed.2d 110 (2006)).

Bullard then provided guidance on how to discern whether a particular order was “immediately appealable” under § 158 by virtue of being final within a proceeding. Id. According to the Court, the relevant proceeding is one that results in a final order that “alters the status quo and fixes the rights and obligations of the parties.” Id. Plan confirmation satisfies this definition: “[w]hen the bankruptcy court confirms a plan, its terms become binding on debtor and creditor alike” with preclusive effect, often resulting in the vesting of property in the debtor and the distribution of funds to creditors. Id. at 1692; see id. at 1695 (holding that a plan confirmation order is appealable because it “alters the legal relationships among the parties”). Denial of confirmation followed by dismissal of the case also satisfies this definition, as “the consequences are similarly significant”: it “dooms the possibility of a discharge” and lifts the automatic stay. Id. at 1692-93. By contrast, “[a]n order denying confirmation is not final, so long as it leaves the debtor free to propose another plan.” Id. at 1692. Unlike the dramatic consequences flowing from either confirmation or dismissal, denial with leave to amend “.changes little,” as “[t]he automatic stay persists” and “[t]he possibility of discharge lives on.” Id. at 1693.

The Supreme Court then addressed the debtor’s argument that a distinct proceeding was conducted “[e]ach time the bankruptcy court reviews a proposed plan” such that the bankruptcy court’s order denying confirmation was therefore a final order within a proceeding for purposes of § 158(a), regardless whether the plan was confirmed or rejected. Id. at 1692. Rejecting this argument, Bullard reasoned that such an approach “[did] not make much sense” because it defined “the pertinent proceeding so narrowly that the requirement of finality would do little work as a meaningful constraint on the availability of appellate review.” Id. at 1693. By vastly expanding the class of immediately appeal-able orders, the debtor’s proposal gave rise to an unacceptable risk of piecemeal appeals, given that “debtors may often view ... the prospect of appeals as important leverage in dealing with creditors.” Id. Judicial efficiency would also suffer under the debtor’s proposal. Given that “each climb up the appellate ladder and slide down the chute can take more than a year,” expanding the class of appealable orders would create precisely the “delays and inefficiencies” that finality rules sought to prevent in the first instance. Id.

For the same reason, the Court rejected the government’s argument that “an order resolving any contested matter is final and immediately appealable.” Id. at 1694 (emphasis omitted). Bullard explained that “the list of contested matters is ‘endless’ and covers all sorts of minor disagreements.” Id. (quoting 10 Resnick & Som-mer, Collier on Bankruptcy ¶ 9014.01, at 9014-3). “The concept of finality cannot stretch to cover, for example, an order resolving a disputed request for an extension of time.” Id. The asymmetry produced by the Court’s analysis (plan confirmation is appealable as a final order while plan denial is not) was of little import. As Bul-lard explained, “it is of course quite common for the finality of a decision to depend on which way the decision goes.” Id. at 1694. For instance, “[a]n order granting a motion for summary judgment is final; an order denying such a motion is not.” Id.

The Court acknowledged that sometimes “a question will be important enough that it should be addressed immediately.” Id. at 1695. Indeed, the Court noted that the issue in Bullard “could well fit the bill” because it “presented a pure question of law that had divided bankruptcy courts in the First Circuit and would make a substantial financial difference to the parties.” Id. But neither the significance of the issue nor its purely legal nature warranted a more flexible finality standard; the availability of interlocutory review, such as that provided under § 158(d)(2) and § 1292, was sufficient to address this concern. Id.

In sum, Bullard concluded that an order ending a proceeding in a bankruptcy case is immediately appealable if the order “alters the status quo and fixes the rights and obligations of the parties,” id. at 1692, or “alters the legal relationships among the parties,” id. at 1695. This interpretation of finality in bankruptcy cases determines the scope of the district court and BAP’s authority to hear appeals “from final judgments, orders, and decrees” under § 158(a)(1) as well as our authority to hear “appeals from all final decisions, judgments, orders, and decrees” of bankruptcy judges entered by the district court and BAP under § 158(d)(1), which are governed by the same constraints. See Powerex Corp. v. Reliant Energy Serve., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007) (“[Ijdentical words and phrases within the same statute should normally be given the same meaning....”); Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (“[(Operative words have a consistent meaning throughout....”).

C

Our approach to determining jurisdiction under § 158(d) is generally consistent with Bullard, as we have explained in our post-Bullard decisions. See Eden Place, LLC v. Perl (In re Perl), 811 F.3d 1120 (9th Cir. 2016); In re Landmark Fence, 801 F.3d 1099. Just as Bullard held that “[t]he rules are different'in bankruptcy” because a bankruptcy case involves “an aggregation of individual controversies,” 135 S.Ct. at 1692, we have long recognized that certain bankruptcy orders are appeal-able even if they do not conclude the entire bankruptcy case, and thus are “technically interlocutory,” In re Perl, 811 F.3d at 1125 n.3 (quoting Alexander v. Compton (In re Bonham), 229 F.3d 750, 761 (9th Cir. 2000)); see also Four Seas Ctr., Ltd. v. Davres, Inc. (In re Four Seas Ctr., Ltd.), 754 F.2d 1416, 1418 (9th Cir. 1985) (citing “an order entirely terminating an adversary proceeding” as an example of an immediately appealable order). Consistent with Bullard ’s ruling that § 158 provides jurisdiction over orders in bankruptcy cases that alter “the legal relationships among the parties,” 135 S.Ct. at 1695, we have looked “to whether the bankruptcy court’s decision: 1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed’ ” in determining whether a particular bankruptcy court order is final, In re Perl, 811 F.3d at 1126 (quoting SS Farms, LLC v. Sharp (In re SK Foods, L.P.), 676 F.3d 798, 802 (9th Cir. 2012)). When the district court (or BAP) affirms or reverses such a decision, we have considered it to be final and immediately ap-pealable. Id.

By contrast, when an appeal is taken from a district court or BAP ruling that remands the case for further proceedings in the bankruptcy court, we have applied a four-factor test, considering “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Id. at 1126 (quoting In re Landmark Fence, 801 F.3d at 1102). As in Bullard, these factors direct us to avoid piecemeal appeals and multiple “climb[s] up the appellate ladder and slide[s] down the chute” and the “delays and inefficiencies” that result. 135 S.Ct. at 1693. Applying this four-factor standard, we have held that “a district court order that includes a remand to the bankruptcy court with explicit instructions to engage in ‘further fact-finding’ ” is not immediately appeal-able. In re Landmark Fence, 801 F.3d at 1101.

In Landmark Fence, our leading post-Bullard decision, a district court held that a bankruptcy court had applied an incorrect legal standard for assessing an element of damages and remanded for “additional fact finding.” Id. at 1102. On appeal, we concluded that we lacked jurisdiction over the district court’s order. Id. at 1101. Most important, we held that the first factor, “the risk of piecemeal litigation” weighed heavily in favor of the conclusion that the district court’s order was not final: “When an intermediate appellate court remands a case to the bankruptcy court, the appellate process likely will be much shorter if we decline jurisdiction and await ultimate review of all the combined issues.” Id. at 1108 (quoting Stanley v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Vill. Resort, Ltd.), 81 F.3d 103, 106 (9th Cir. 1996)). With respect to the second factor, we rejected the appellants’ argument that judicial efficiency would be enhanced by asserting jurisdiction because our review of the merits had the potential to end the litigation. Id. Rather, we held that we should “eschew a ‘jurisdictional inquiry that requires us to decide the merits of the appeal.’ ” Id. (quoting Vylene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters.), 968 F.2d 887, 891 (9th Cir. 1992)). Landmark Fence’s, articulation of this test is consistent with a long line of cases holding that when a district court “remands for factual determinations on a central issue, its order is not final and we lack jurisdiction to review the order.” In re Vylene Enters., 968 F.2d at 895 (determining that a district court’s remand to the bankruptcy court for factual determinations on a central issue was not final after considering the four factors applied in Landmark Fence); see also U.S. Bank N.A. v. Vill. at Lakeridge, LLC (In re Vill. at Lakeridge, LLC), 814 F.3d 993, 998 n.7 (9th Cir. 2016) (“[T]he BAP’s decision as issued was not final, because ... it also remanded for discovery to allow factual determinations [on a central issue].”); King v. Stanton (In re Stanton), 766 F.2d 1283, 1287 (9th Cir. 1985) (noting that “when the BAP remands for further factual findings related to a central issue raised on appeal, that order is not final, and we lack jurisdiction”); Dental Capital Leasing Corp. v. Martinez (In re Martinez), 721 F.2d 262, 265 (9th Cir. 1983) (holding that because the § 1291 finality standards apply “to remands for factual determinations in the bankruptcy context,” and only “final decisions” of BAPs can be appealed to the appellate court, we lack jurisdiction over “a remand to the bankruptcy court for clarification of a central issue of the case”).

We have departed from this general rule in situations “where the district court’s remand order is limited to ‘purely mechanical or computational task[s] such that the proceedings on remand are highly unlikely to generate a new appeal.’ ” In re Landmark Fence, 801 F.3d at 1103 (alteration in original) (quoting Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1172 (9th Cir. 2003)); see also Farm Credit Bank of Spokane v. Fowler (In re Fowler), 903 F.2d 694, 695-96 (9th Cir. 1990) (holding that where the district court remanded to the bankruptcy court only for the ministerial function of applying the correct interest rate, the district court order was sufficiently final to be immediately appealable.).

D

Gugliuzza argues that in evaluating whether the district court’s order qualifies as a final order, we are not bound by Bullard and Landmark Fence, but should apply a, different line of cases beginning with Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899 (9th Cir. 1993). In Bonner Mall, a creditor moved for relief from the automatic stay in order to foreclose on secured property owned by the debtor, who had filed a proposed reorganization plan. Id. at 902. The debtor argued that relief from the automatic stay was not warranted, as its reorganization plan was confirmable based on the theory that the owners of the company could retain some of their equity in the company under an exception (called the “new value exception”) to a bankruptcy rule that would have otherwise prohibited such treatment of equity holders. Id. The creditor argued that the new value exception had not survived the enactment of the Bankruptcy Code in 1978, and that even if the exception had survived, the plan was unconfirmable. Id. Agreeing with the creditor, the bankruptcy court held that the enactment of the Bankruptcy Code had eliminated the new value exception and accordingly granted the creditor’s motion for relief. Id. The district court reversed, holding that the new value exception remained in force, and therefore remanded to the bankruptcy court for further proceedings as to the confirmability of the debtor’s plan. Id. at 902-03.

Straying from our long line of cases holding that an order remanding “for factual determinations on a central issue” is not final, see In re Vylene Enters., 968 F.2d at 895, we announced the new rule that we have jurisdiction “even though a district court has remanded a matter for factual findings on a central issue if that issue is legal in nature and its resolution either 1) could dispose of the case or proceeding and obviate the need for fact finding; or 2) would materially aid the bankruptcy court in reaching its disposition on remand.” In re Bonner Mall, 2 F.3d at 904 (citing In re Stanton, 766 F.2d at 1288 n.8). Applying this rule to the case at hand, we determined that “[t]he central question is a legal one that is clearly potentially dispositive.” Id. Accordingly, we held that the first prong of our new test applied and asserted jurisdiction over the appeal. Id. at 904-05.

We subsequently asserted jurisdiction over interlocutory remand orders under the second prong of the Bonner Mall test: whether the remand would “materially aid” the bankruptcy court in considering a factual issue. In Dawson v. Washington Mutual Bank, F.A. (In re Dawson), for instance, two debtors filed an adversary action against a creditor claiming that the creditor had violated the automatic stay by foreclosing on property owned by the debtors’ relatives. 390 F.3d 1139, 1144 (9th Cir. 2004). The debtors claimed they had an interest in the property pursuant to a written agreement with those relatives, and sought emotional distress damages caused by the foreclosure. Id. The bankruptcy court held (among other things) that the agreement did not give the debtors any interest in the property and therefore the creditor did not violate the automatic stay. Id. The district court affirmed part of the bankruptcy court’s order, but reversed on one issue: it held that the agreement might have given the debtors an interest in the property, and remanded to the bankruptcy court for factual findings necessary to make that determination, including whether the conditions precedent in the property agreement had been fulfilled. Id. at 1144-45.

In considering whether we had jurisdiction to hear an appeal from the district court’s order, we acknowledged that the “district court reversed the bankruptcy [court] on a central issue in the case ... and remanded the case for further factual findings.” Id. at 1145. Nevertheless, we noted that the case raised a legal question: “When, if ever, are damages for emotional distress recoverable under 11 U.S.C. § 362(h) for a violation of the automatic stay?” Id. While recognizing that “[o]ur answer will not obviate the need for all further fact-finding,” we concluded that our resolution of this question would “materially aid the bankruptcy court in reaching its disposition on remand” (the second prong of the Bonner Mall test), and therefore asserted jurisdiction. Id. at 1145-46; see also Meyer v. U.S. Trustee (In re Scholz), 699 F.3d 1167, 1170-71 (9th Cir. 2012) (citing In re Dawson, 390 F.3d at 1145-46).

We went even further in Price v. Lehtinen (In re Lehtinen), in which we indicated that we may assert jurisdiction over an appeal of an interlocutory BAP order whenever “the appeal concerns primarily a question of law.” 564 F.3d 1052, 1057 (9th Cir. 2009) (quoting DeMarah v. United States (In re DeMarah), 62 F.3d 1248, 1250 (9th Cir. 1995)). In Lehtinen, a bankruptcy court imposed sanctions on the debtor’s counsel, including disgorgement of attorneys’ fees and suspension from practicing before the bankruptcy court for three months. Id. The BAP held that the bankruptcy court had not abused its discretion in deciding to impose sanctions, but the sanction order did not clearly reflect that the court had considered the relevant factors. Id. Therefore, the BAP vacated the suspension “and remanded to the bankruptcy court for consideration of the American Bar Association Standards.” Id. On appeal, we acknowledged that “there is some question as to the finality of the BAP’s decision,” but nevertheless summarily concluded that “[b]ecause this is a purely legal question, we have jurisdiction.” Id.

In sum, under Bonner Mall and its progeny, we have determined that “final decisions, judgments, orders, and decrees” for purposes of our jurisdiction under § 158(d) include district court or BAP decisions remanding a central issue to the bankruptcy court for further fact-finding so long as the appeal raises a “purely legal question” or our decision on appeal could “materially aid” the bankruptcy court in its decisionmaking process.

E

Bullard and Landmark Fence clearly limit the applicability of the Bonner Mall line of cases. Bullard provides that orders that are technically interlocutory are “final” for purposes of § 158 only when they “finally dispose of [a] discrete dispute[ ] within the larger case,” 135 S.Ct. at 1692 (quoting Howard Delivery Serv., 547 U.S. at 657 n.3, 126 S.Ct. 2105). A decision that remands a case for further fact-finding will rarely have this degree of finality, unless the remand order is limited to ministerial tasks, see, e.g., In re Fowler, 903 F.2d at 695-96. Further, Bullard expressly rejected the argument that a decision should be deemed final because it “presented a pure question of law” that was important to the parties, reasoning that “there are several mechanisms for interlocutory review to address such cases.” 135 S.Ct. at 1695; see also In re Landmark Fence, 801 F.3d at 1103 (rejecting the contention that “the issues in the appeal [are] purely matters of law” based on “the language of the order on appeal,” which included “explicit directions for the bankruptcy court to engage in ‘further fact-finding’ ”).

Finally, although the Supreme Court gave weight to considerations regarding the efficiency of- the judicial process, it chose not to adopt a case-by-case approach to this issue. Rather than evaluate whether the appeal of a specific ruling would be efficient in a particular case, the Court adopted the general principle that only decisions that alter the status quo or fix the parties’ rights and obligations could be appealed. Bullard, 135 S.Ct. at 1692. The Court focused on ensuring “a meaningful constraint on the availability of appellate review” as opposed to expanding the universe of appealable interlocutory orders. Id. at 1693. To the extent Bonner Mall suggests we may peek at the merits in order to determine whether we have jurisdiction (i.e., because we have determined that our resolution of the legal issue would dispose of the case without a need for further fact-finding, or would correct an error by the district court and thus assist the bankruptcy court on remand), it is inconsistent with Bullard and our post-Bullard precedent. As Landmark Fence put it, we must “eschew a ‘jurisdictional inquiry that requires us to decide the merits of the appeal.’ ” 801 F.3d at 1103 (quoting In re Vylene Enters., 968 F.2d at 891). Regardless whether it would be judicially efficient to consider a reversal of a summary judgment order, “[a]n order granting a motion for summary judgment is final; an order denying such a motion is not.” Bullard, 135 S.Ct. at 1694. Bullard made clear that our analysis of whether an order is “final” is different in bankruptcy only to the extent a “final” order under § 158 may terminate a discrete proceeding in bankruptcy, rather than the entire bankruptcy case. See 135 S.Ct. at 1692.

Accordingly, to the extent Bonner Mall holds that we have jurisdiction over an interlocutory order in a bankruptcy case because ruling on a legal issue could “dispose of the case” or “aid the bankruptcy court in reaching its disposition,” In re Bonner Mall, 2 F.3d at 904, or merely because the appeal involves “a purely legal question,” In re Lehtinen, 564 F.3d at 1057, it is inconsistent with Bullard and therefore no longer binding. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (where a “prior decision may have been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority,” it “is no longer binding on district judges and three-judge panels of this court”); see also In re Vylene Enters., 968 F.2d at 895 (when a district court “remands for factual determinations on a central issue, its order is not final and we lack jurisdiction to review the order.”). Gugliuzza’s reliance on Bonner Mall and its progeny is therefore unavailing.

Ill

We now apply these principles to this case, and consider whether we have jurisdiction over the district court’s order reversing in part and remanding to the bankruptcy court to determine whether Gugliuzza had an intent to deceive.

We have no difficulty concluding that we lack jurisdiction under §§ 1291 and 1292. We do not have jurisdiction under § 1291 because the district court’s order did not “ ‘end[ ] the litigation on the merits and leave[ ] nothing for the district court to do but execute the judgment.’ ” In re Bender, 586 F.3d at 1163 (quoting Firestone Tire, 449 U.S. at 373, 101 S.Ct. 669). We also lack jurisdiction under § 1292 because the district court did not certify its decision for interlocutory review.

We next turn to the question whether we have jurisdiction under § 158(d)(1). The district court’s decision did not end the bankruptcy case as a whole, but as noted in Bullard, a “technically interlocutory” ruling can be deemed to be a final order in a bankruptcy case. See In re Perl, 811 F.3d at 1125 n.3. But here, the district court’s ruling did not end the discrete proceeding before it, namely the FTC’s adversary action. The main issue raised in the FTC’s adversary action is whether Gugliuzza’s restitution debt to the FTC can be discharged in Gugliuzza’s bankruptcy, or whether that debt is non-dischargeable under 11 U.S.C. § 523(a)(2)(A). Rather than resolving this issue, the district court remanded the case to the bankruptcy court for fact-finding on a central issue. As a result, the district court’s decision did not “alter[ ] the status quo” or “fix[ ] the rights and obligations of the parties.” Bullard, 135 S.Ct. at 1692. Like the denial of the plan confirmation in Bullard, the district court’s ruling “changes little.” Id. at 1693. Because the possibility that Gugliuzza’s restitution judgment may be discharged in bankruptcy lives on, we must conclude, as indicated in Bullard, that “ ‘[fjinal’ does not describe this state of affairs.” Id. As the Supreme Court memorably put it, “It ain’t over till it’s over,” and the nondischargeability dispute here simply “ain’t over.” Id.

Landmark Fence likewise requires this conclusion. As in that case, “the risk of piecemeal litigation is significant” here. 801 F.3d at 1103. Our intrusion into this matter would fragment the adversary proceeding between the FTC and Gugliuzza “earned out under the umbrella of the bankruptcy case.” Bullard, 135 S.Ct. at 1694. The other factors considered in Landmark Fence likewise weigh against our jurisdiction. Efficiency is best served by our review of the district court’s resolution of the dispute between the parties as a whole (i.e., in this case, whether Gugliuz-za’s restitution debt is dischargeable in bankruptcy under § 523(a)(2)(A)), not our review of the individual elements of a dispute. Any efficiency gained by the potential for clarification of the scope of the bankruptcy court’s fact-finding mission on remand is outweighed by the near certainty of piecemeal appeals that result, espe-' dally given that this argument could be made with respect to interim review of an “endless” list of matters. Id. Further, the bankruptcy court’s fact-finding role is best preserved by allowing the remand to run its course, particularly since the bankruptcy court’s fact-finding on the issue of intent may result in the conclusion that the restitution debt is nondischargeable. See In re Stanton, 766 F.2d at 1287 (“[I]f the BAP [or district court] remands for factual development and we take jurisdiction before that process is concluded, we interfere with the bankruptcy court’s fact-finding role.”). As Bullard held, it is not sensible to stretch the concept of finality so far that “the requirement of finality would do little work as a meaningful constraint on the availability of appellate review.” 135 S.Ct. at 1693.

The bankruptcy court’s task on remand here, to determine whether Gugliuzza had the requisite intent to deceive, is not a mere “mechanical or computational task[ ] such that the proceedings on remand are highly unlikely to generate a new appeal.” In re Landmark Fence, 801 F.3d at 1103 (quoting In re Saxman, 325 F.3d at 1172). Therefore, this case does not fall into the ministerial exception to our rule that, when “an intermediate appellate court remands a case to the bankruptcy court,” we should “decline jurisdiction and await ultimate review of all the combined issues.” Id. (quoting In re Lakeshore Vill. Resort, 81 F.3d at 106).

Moreover, it is doubtful that an interlocutory district court order can cause irreparable harm in light of the “parties’ rights and obligations remaining] unsettled,” Bullard, 135 S.Ct. at 1693, and the availability of mechanisms for interlocutory review, see id. at 1695-96. Indeed, Gugliuzza has conceded the lack of irreparable harm in this case.

Finally, we reject Gugliuzza’s argument that because the issues on appeal in this case are purely legal in nature, and our disposition of these issues could aid the bankruptcy court by allowing it to aggregate all necessary fact-finding into a single proceeding, the district court’s order should be deemed “final” for purposes of § 158(d) under Bonner Mall. The decision by the district court in this case does not mark the conclusion of a discrete proceeding or fix the rights and obligations of any party, Bullard, 135 S.Ct. at 1692, and otherwise does not meet the standards set forth in Landmark Fence. This four-factor test controls, even when a “case arguably falls within” an exception to non-finality adopted in the Bonner Mall line of cases. See Walthall v. United States, 131 F.3d 1289, 1293 (9th Cir. 1997). We therefore do not have jurisdiction here.

IV

While we have recognized the need to take a pragmatic approach to asserting jurisdiction over orders in bankruptcy cases under § 158(d), we have long held that where the district court’s decision “remanded to allow the bankruptcy judge more accurately to determine the respective rights and obligations of the parties,” then we “need not depart from the usual finality doctrines of 28 U.S.C. § 1291,” and lack jurisdiction over the appeal. In re Martinez, 721 F.2d at 265; see also In re Stanton, 766 F.2d at 1287; In re Vylene Enters., 968 F.2d at 895. This longstanding precedent has now been confirmed by Bul-lard, which established that under the pragmatic approach to finality in bankruptcy cases, we have jurisdiction over rulings that are technically interlocutory because they do not end the bankruptcy case as a whole, but which do end a discrete proceeding within such cases. Bullard, 135 S.Ct. at 1692. Bullard compels the conclusion that rulings in bankruptcy cases that neither end a case nor a discrete dispute, but rather remand for further fact-finding on a central issue, are not final for purposes of § 158(d). Where the “parties’ rights and obligations remain unsettled,” then “ ‘[flinal’ does not describe this state of affairs.” Id. at 1693. Because a district court decision reversing a summary judgment and remanding for further fact-finding is not final by any measure, as Bullard expressly stated, we lack jurisdiction in this case, and accordingly dismiss the appeal.

APPEAL DISMISSED.

      . We affirmed this liability determination on appeal. See FTC v. Commerce Planet, Inc., 642 Fed.Appx. 680, 683 (9th Cir. 2016).

      . We affirmed the district court’s authority to enter the restitution order, but vacated the order and remanded because the district court did not "actually hold [Gugliuzza] jointly and severally liable for Commerce Planet’s restitution obligations.” FTC v. Commerce Planet, Inc., 815 F.3d 593, 603 (9th Cir. 2016). On remand, the district court modified its order and held Gugliuzza jointly and severally liable for the restitution obligations.

      .11 U.S.C. § 523(a)(2)(A) provides, in pertinent part:

      . 28 U.S.C. § 158(a) provides, in full:
      The district courts of the United States shall have jurisdiction to hear appeals
      (1) from final judgments, orders, and decrees;
      (2) from interlocutory orders and decrees issued under section 1121(d) of title 11 increasing or reducing the time periods referred to in section 1121 of such title; and
      (3) with leave of the court, from other interlocutory orders and decrees;

      and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title. An appeal under this subsection shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving. (Emphasis added.)
      The repetition of the phrase "with leave of the court, from ... interlocutory orders and decrees” appears to be an error introduced by the Bankruptcy Reform Act of 1994. As originally enacted in 1984, § 158(a) gave district courts jurisdiction to "hear appeals from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees.... ” See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 104(a), 98 Stat. 333, 341. In the 1994 Act, Congress amended this provision to add the language of what is now § 158(a)(l)-(3), which includes the phrase: "with leave of the court, from other interlocutory orders and decrees,” see Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 102, 108 Stat. 4106, 4108. This redundancy does not affect the subsection’s meaning.

      . Generally, an interlocutory order or decree may be appealed only "with leave of the court.” 28 U.S.C. § 158(a)(3). However, an appeal may be taken as of right from an interlocutory order and decree issued under 11 U.S.C. § 1121(d), which provides for modification of the exclusivity period in which only the debtor may propose a reorganization plan. 28 U.S.C. § 158(a)(2); see Bank of Am. Nat’l Trust & Sav. Ass’n v. 203 N. LaSalle St. P’ship, 526 U.S. 434, 438-39, 119 S.Ct. 1411, 143 L.Ed.2d 607 (1999).

      . Additionally, § 158(d) gives us jurisdiction to hear direct appeals from a "judgment, order, or decree" of a bankruptcy court, bypassing the district court or the BAP, if we receive the appropriate certification from the court involved or all of the parties. See 28 U.S.C. § 158(d)(2).

      . Section 158(b) (which provides for the establishment of a bankruptcy appellate panel) grants the BAP jurisdiction to hear appeals over "final judgments, orders, and decrees” as well as over "interlocutory orders and decrees" to the same extent as district courts sitting as appellate bodies in bankruptcy. See 28 U.S.C. § 158(b)(1). Accordingly, our jurisdiction under § 158(d) is the same whether the decision was entered by the BAP or, as here, by a district court.

      .As noted in Germain, the jurisdiction provided to the federal circuit courts under § 1291 from final decisions of the district courts acting in any capacity overlaps with the jurisdiction conferred by § 158(d). This overlap notwithstanding, Germain held that interpreting § 1291 as conferring the same jurisdiction as § 158(d) over final decisions of district courts sitting as appellate bodies did not make § 1291 superfluous, because § 158(d) "also confers jurisdiction over final decisions of the appellate panels in bankruptcy acting under § 158(b).” 503 U.S. at 253, 112 S.Ct. 1146.

      . In re Pour Seas Center considered the scope of our jurisdiction under a predecessor to § 158, 28 U.S.C. § 1293. See 754 F.2d at 1418. However, "we have held that decisions regarding finality under § 1293 are applicable to cases arising under § 158," Klestadt & Winters, 672 F.3d at 814 n.4.

      . Indeed, Bullard could have considered the judicial efficiencies gained had the appellate court taken jurisdiction of the debtor’s appeal and ruled that the debtor’s plan should have been confirmed. Such a favorable ruling would have concluded the proceedings, and the debtor could have avoided additional efforts to revise his plan. Instead, Bullard noted that if the appellate court affirmed the denial of the plan, then the debtor could appeal each subsequent plan that was denied. 135 S.Ct. at 1693.


author: CLIFTON, Circuit Judge: BERZON,

text:
    Alfred COPELAND, aka Charles Alfred Copeland, Petitioner-Appellee, v. Charles L. RYAN; Attorney General of the State of Arizona, Respondents-Appellants.
    No. 16-15849
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 15, 2017 San Francisco, California
    Filed March 28, 2017

      Kristina Reeves (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; John R. Lopez, IV, Solicitor General; Mark Brnovich, Attorney General; Capital Litigation Section, Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellants.
    Emma Isakson (argued) and Lee Stein, Mitchell Stein Carey PC, Phoenix, Arizona, for Petitioner-Appellee.
    Before: MARSHA S. BERZON and RICHARD R. CLIFTON, Circuit Judges, and MARVIN J. GARBIS, District Judge.

       The Honorable Marvin J. Garbis, United States District Judge for the District of Maryland, sitting by designation.

   Concurrence by Judge BERZON

OPINION

CLIFTON, Circuit Judge:

Respondent Charles L. Ryan, as Director of the Arizona Department of Corrections, appeals the district court’s interlocutory orders requiring him to reimburse Petitioner AJfred Copeland for deposition expenses incurred in Copeland’s pending habeas proceeding under 28 U.S.C. § 2254. We have interlocutory jurisdiction under the collateral order doctrine. We conclude that a district court cannot order a state to reimburse an indigent habeas petitioner for deposition expenses in a § 2254 habeas proceeding when, as here, the state did not request the deposition. We reverse the relevant orders and remand for further proceedings to determine whether Copeland may obtain reimbursement from the federal government under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.

I. Background

Following a jury trial in an Arizona state court, Copeland was convicted in February 2002 on ten different state criminal charges. The state court sentenced Copeland to a total of 118 years’ imprisonment.

Eleven years later, in November 2013, Copeland filed in federal court a pro se petition for habeas corpus under 28 U.S.C. § 2254 challenging his state convictions. To overcome § 2254’s one-year statute of limitations, Copeland alleged “actual innocence” on several counts of the underlying indictment. The district court held that Copeland had failed to establish actual innocence on all but two of the counts of the indictment, and ordered an evidentiary hearing on the remaining two counts. In light of the evidentiary hearing and Copeland’s indigent status, the district court ordered the appointment of counsel for Copeland under the CJA, 18 U.S.C. § 3006A(a)(l)(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 victims, who had been identified as potential fact witnesses. Both victims indicated that they no longer lived in Arizona and were unwilling to travel to Arizona to participate in the hearing. At the suggestion of Copeland’s appointed counsel, the district court excused the victims from appearing in person at the evidentiary hearing, and instead subpoenaed them to testify via video' depositions to be taken near their respective homes outside Arizona. The district court ordered both parties’ counsel to attend the depositions.

After , the depositions were scheduled, Copeland’s appointed counsel filed two ex parte motions requesting that the State reimburse Copeland for certain expenses incurred in connection with the out-of-state depositions. The district court granted both applications under Federal Rule of Criminal Procedure 15(d), and ordered the State to reimburse Copeland for (1) “the expenses incurred in the taking of video depositions of [both witnesses]”; (2) “the reasonable travel and subsistence expenses incident to the attendance of [Copeland’s] counsel at the depositions,”'including airfare, lodging, rental cars, and meals; and (3) “the costs of attendance of [both witnesses] at the depositions.”

After the district court summarily denied the State’s motion for reconsideration of the reimbursement orders, the State timely filed this interlocutory appeal.

II. Jurisdiction

Under the final judgment rule, appellate jurisdiction is customarily limited to “final decisions” of the district courts. 28 U.S.C. § 1291. Copeland’s habeas petition is still pending before the district court, so there is no final judgment in his case yet. The State contends that we nevertheless have jurisdiction in this instance under the collateral order doctrine. We agree that there is collateral order jurisdiction here.

The collateral order doctrine provides a narrow exception to the final judgment rule. Under the collateral order doctrine, an appellate court may exercise jurisdiction over an interlocutory ruling when the following three conditions are met: (1) the ruling constitutes a final ruling on the relevant issue; (2) the ruling resolves “important questions separate from the merits”; and (3) the ruling is “effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). Regarding the third condition, “the decisive consideration is whether delaying review until the entry of final judgment “would imperil a substantial public interest’ or ‘some particular value of a high order.’ ” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quoting Will v. Hallock, 546 U.S. 345, 352-53, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006)). “In making this determination, we do not engage in an ‘individualized jurisdictional inquiry.’ ” Id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 473, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Rather, we must focus on “the entire category to which a claim belongs,” and determine whether “the class of claims, taken as a whole, can be adequately vindicated by other means.” Id. (internal quotation marks omitted).

All three conditions are met here. As we have previously held, this court has collateral order jurisdiction to review interlocutory orders requiring a government litigant to pay for litigation expenses incurred by the opposing party. For example, in United States v. Baker, 603 F.2d 759, 761-62 (9th Cir. 1979), we exercised jurisdiction under the collateral order doctrine to review a district court order requiring the federal government to pay, under Federal Rule of Criminal Procedure 15, the defendant’s attorney’s fees for expenses incurred in connection with depositions held outside the United States. Similarly, in Wiggins v. Alameda County, 717 F.2d 466, 467-68 (9th Cir. 1983), we exercised jurisdiction to review a district court’s order requiring state prison officials to pay expenses associated with producing and guarding a state prisoner during the duration of his federal civil rights trial. In exercising jurisdiction under the collateral order doctrine in Wiggins, we explained that collateral order review was appropriate because the order “resolved finally the State’s efforts to avoid the costs associated with securing [the plaintiff’s] presence at the trial of his civil rights action,” and that “[s]uch an allocation of costs to the State was completely collateral to the issues raised in the underlying civil rights suit.” Id. at 468.

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 reimburse Copeland for his deposition expenses. As required for collateral order review, the district court’s reimbursement orders constituted the final ruling on Copeland’s right to seek reimbursement from the State, the orders were separate from the merits of Copeland’s habeas petition, and the orders would be effectively unreviewable on appeal from a final judgment on Copeland’s habeas petition. See Swint, 514 U.S. at 42, 115 S.Ct. 1203.

Further, when viewing the State’s claim as belonging to a “class of claims, taken as a whole,” it is clear that this category of claims cannot be “adequately vindicated by other means.” Mohawk Industries, 558 U.S. at 107, 130 S.Ct. 599. In this appeal, the State challenges orders by the district court requiring the expenditure of public funds to reimburse an indigent habeas petitioner for certain litigation expenses. If review of the reimbursement orders were delayed until after final judgment, the State would be unable to collect from the petitioner the amounts it already paid out, even if the orders were reversed on appeal. The premise of the orders was that Copeland is indigent and does not currently have the money to make the payments. He is a prisoner, so it cannot be assumed that he would in the meantime come into funds sufficient to reimburse the State for the expenses. Thus, as a practical matter, delaying review until after final judgment would leave the State with essentially no recourse to vindicate its “substantial public interest” in protecting the state fisc against the unauthorized expenditure of public funds. Will, 546 U.S. at 353, 126 S.Ct. 952. Collateral order jurisdiction is therefore appropriate here.

III. Discussion

We review de novo the district court’s determination that Copeland is entitled to reimbursement from the State under Federal Rule of Criminal Procedure 15(d). See United States v. Fort, 472 F.3d 1106, 1109 (9th Cir. 2007) (“We review de novo a district court’s interpretation of the Federal Rules of Criminal Procedure.” (citing United States v. Navarro Viayra, 365 F.3d 790, 793 (9th Cir. 2004))).

On appeal, the State challenges the district court’s reimbursement orders on two independent grounds: (1) the reimbursement orders were unlawful because there are no statutes or rules authorizing the district court to order the State to reimburse Copeland for the deposition expenses, and (2) the orders abrogated state sovereignty in violation of the Eleventh Amendment of the U.S. Constitution. We agree with the State on the first ground. The district court was not authorized to order the State to pay for expenses of depositions in a § 2254 habeas proceeding that were not requested by the State. Applying the principle of constitutional avoidance, we decline to consider whether the reimbursement orders violated the Eleventh Amendment. Overstreet v. United Bhd. of Carpenters & 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 not have authority to order one party in civil litigation to pay the expenses of the other party. See Carbonell v. INS, 429 F.3d 894, 897-98 (9th Cir. 2005) (“[Litigants ordinarily are required to bear the expenses of their litigation unless a statute or private agreement provides otherwise.”); see also Doe v. United States, 112 F.R.D. 183, 184 (S.D.N.Y. 1986) (“Litigants generally bear their own deposition expenses initially. The exceptions to this rule are few.”). Copeland argues that the district court was authorized to issue the reimbursement orders under both Federal Rule of Criminal Procedure 15(d) and the Rule 6(c) of the Rules Governing Section 2254 Cases. We disagree.

1. Federal Rule of Criminal Procedure 15(d)

Federal Rule of Criminal Procedure 15 concerns depositions in federal criminal proceedings. Rule 15(d), entitled “Expenses,” provides:

If the deposition was requested by the government, the court may — or if the defendant is unable to bear the deposition expenses, the court must — order the government 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 deposition transcript.

Copeland argues that because the Federal Rules of Criminal Procedure apply to § 2254 habeas proceedings, he may recover his deposition expenses from the State under Rule 15(d). That argument fails on multiple grounds.

To begin with, the Federal Rules of Criminal Procedure do not apply to habeas proceedings brought by state prisoners under 28 U.S.C. § 2254. Although habeas actions are filed by persons previously convicted of criminal offenses to challenge those convictions (or the effects of the convictions), habeas corpus proceedings are “civil in nature,” not “criminal.” Mayle v. Felix, 545 U.S. 644, 654 n.4, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). Federal habeas actions brought by state prisoners are brought under 28 U.S.C. § 2254 and are governed by a discrete set of rules, namely the Rules Governing Section 2254 Cases in the United States District Courts. Id. at 654, 125 S.Ct. 2562. A different statute, 28 U.S.C. § 2255, pertains to habeas proceedings brought by persons convicted of federal crimes, and those cases are governed by a different set of rules, the Rules Governing Section 2255 Cases in the United States District Courts.

When a petitioner challenges a federal conviction under § 2255, discovery may be governed by both the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. See Rule 6(a), Rules Governing Section 2255 Cases (“A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and principles of law.”); see also Rule 12, Rules Governing Section 2255 Cases (“The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”).

By contrast, when the petitioner challenges a state conviction under § 2254, discovery is instead governed by the Federal Rules of Civil Procedure. See Rule 6(a), Rules Governing Section 2254 Cases (“A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure.... ”); Rule 6(a), Rules Governing Section 2254 Cases, advisory committee’s note to 1976 adoption (“This rule prescribes the procedures governing discovery in habeas corpus cases. Subdivision (a) provides that any party may utilize the processes of discovery available under the Federal Rules of Civil Procedure ... if, and to the extent that, the judge allows.”); see also Rule 12, Rules Governing Section 2254 Cases (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”).

Copeland is a state prisoner, so his ha-beas action was brought under § 2254. Under the plain language of the Rules Governing Section 2254 Cases, only the Federal Rules of Civil Procedure apply to § 2254 habeas proceedings. The Federal Rules of Criminal Procedure do not apply to § 2254 habeas proceedings.

Copeland raises several arguments in response, all of which are based on the same premise: because there are no authorities expressly providing that the Federal Rules of Criminal Procedure do not apply to § 2254 habeas proceedings, the Federal Rules of Criminal Procedure apply here. This argument conflicts with a basic principle of statutory interpretation. Under the maxim of expressio unius est exclusio alterius, there is a presumption “that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.” Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir. 1991); see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107-111 (2012) (identifying this as the “Negative-Implication Canon”). Here, Rule 6(a) and Rule 12 of the Rules Governing Section 2254 Cases provide only that the Federal Rules of Civil Procedure govern discovery in § 2254 habeas proceedings. Applying this principle of statutory interpretation, we must presume that the Federal Rules of Criminal Procedure do not apply to § 2254 habeas proceedings.

This presumption is confirmed by the fact, as detailed above, that Rule 6(a) and Rule 12 of the Rules Governing Section 2255 Cases expressly provide that both the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure apply in § 2255 habeas proceedings. The difference between the two sets of rules cannot be shrugged off as an accident or oversight. Copeland has provided no reason why we should not apply this presumption that the Federal Rules of Criminal Procedure do not apply to § 2254 habeas proceedings, and we see none. See United States v. Bert, 292 F.3d 649, 652 n.12 (9th Cir. 2002) (declining to apply presumption when “the mechanical application of ex-pressio unius is contrary to both logic and legislative purpose”).

That the Federal Rules of Criminal Procedure do not apply to this case is fatal to Copeland’s argument that they authorize the district court’s orders. Copeland does not argue that there is anything in the Federal Rules of Civil Procedure that supports the district court’s orders here.

It would, moreover, take a strained interpretation of Federal Rule of Criminal Procedure 15(d) to support the order in this case, even if that rule did apply. Rule 15(d) refers to “the government,” but within the Federal Rules of Criminal Procedure that term necessarily refers to the federal government, as those rules apply only to criminal prosecutions brought by the federal government. See Fed. R. Crim. P. 1(a)(1). Copeland has provided no reason why we should conclude that these rules were ever intended to apply to a state in circumstances like the one here, and we can see none.

Rule 15(d) is also by its express terms applicable when “the deposition was requested by the government.” That was not the case here. As we discuss in connection with Rule 6(c) of the Rules Governing Section 2254 Cases, immediately below, that makes a difference.

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

Copeland argues that the district court was also authorized to issue the reimbursement orders under Rule 6(c) of the Rules Governing Section 2254 Cases. The language of the rule says otherwise.

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

If the respondent is granted leave to take a deposition, the judge may require the respondent to pay the travel expenses, subsistence expenses, and fees of the petitioner’s attorney to attend the deposition.

The “petitioner” in a habeas case under § 2254 is the prisoner challenging his conviction or confinement, 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 Cases. Here, the respondents are the Director of the Arizona Department of Corrections and the Arizona Attorney General.

The rule says in so many words that the State (or its agent) may be required to pay deposition expenses “[i]f the respondent [■ie., the State] is granted leave to take a deposition.” In that sense, Rule 6(c) of the Rules Governing Section 2254 Cases is similar to Federal Rule of Criminal Procedure 15(d), discussed above, in that both authorize the court to order the government to pay deposition expenses when the government requests the deposition.

But the State did not request the depositions at issue here. After the two witnesses declined to travel to Arizona to testify, it was Copeland’s counsel who suggested that video depositions be taken instead. The district court’s orders recite that they are in response to Copeland’s ex parte motion seeking permission to travel outside Arizona for depositions. The district court made no finding that the State sought leave to take the depositions, and Copeland does not contend that it did. It appears that the testimony of these witnesses 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 requested by the State. Rule 6(c), Rules Governing Section 2254 Cases. The interpretation urged by Copeland would eliminate that condition. If the rule were intended to permit the court to require the State to pay for the deposition regardless of which party sought the deposition, then the first ten words would not have been included in the rule. We are not at liberty to edit them out. The maxim expressio unius est exclusio alterius, discussed above, at 12-13, applies here as well. The omission of authority to order the 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 district court may consider whether Copeland’s deposition expenses are reimbursable by the federal government.

Although we disagree with Copeland that his deposition expenses were reimbursable by the State, his deposition expenses nevertheless appear reimbursable by the federal government under the CJA. The district court ordered the appointment of habeas counsel under the CJA to represent Copeland in connection with the evidentiary hearing on his “actual innocence” claims. District courts can order the federal government to reimburse an indigent habeas petitioner’s deposition expenses when the petitioner qualifies for the appointment of habeas counsel under the CJA. See 18 U.S.C. § 3006A(a)(2)(B) (providing for the appointment of counsel “for any financially eligible person who ... is seeking relief under section ... 2254 ... of title 28”); id. §§ 3006A(d)(l), (4) (“Attorneys may be reimbursed for expenses reasonably incurred” as determined by “[t]he United States magistrate or the court....”); Guidelines for Administering the Criminal Justice Act §§ 320.40.20(a), (d) (providing for reimbursement by the U.S. Department of Justice of “[e]xpenses 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 remand, the district court should consider whether Copeland qualifies for reimbursement from the federal government under the CJA.

IV. Conclusion

There are no statutes or rules authorizing the district court to order the State to reimburse Copeland, as an indigent habeas petitioner, for deposition expenses in his §• 2254 habeas proceeding when, as here, the State did not request the depositions. Accordingly, we reverse the district court’s orders and remand for further proceedings.

REVERSED AND REMANDED.

BERZON,

Circuit Judge, concurring:

I join Judge Clifton’s opinion. I write separately to note that although our conclusion regarding the collateral order doctrine is correct 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), the Supreme Court has significantly limited the applicability of the collateral order doctrine in recent years. For example, the Court has held that an order of sanctions under Federal Rule of Civil Procedure 37(a) is not immediately appealable. See Cunningham v. Hamilton Cty., 527 U.S. 198, 210, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999). The Court has also so held with respect to a disclosure order adverse to the attorney-client privilege. See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 112-13, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009).

I am not sanguine that the collateral order doctrine still permits interlocutory review of a district court’s award of discovery costs, given the direction the Supreme Court has taken. But there is no direct conflict between any Supreme Court case and our precedents, Wiggins and Baker, such that those cases are “clearly irreconcilable” with Supreme Court law. A three-judge panel would therefore not be justified in departing from those precedents. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).

With these observations, I concur in the opinion in full.

      . The Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of limitations on § 2254 habeas petitions. 28 U.S.C. § 2244(d). As an exception to this general rule, courts can consider untimely federal habeas petitions if the petitioner shows “actual innocence” on the challenged convictions. Schlup v. Delo, 513 U.S. 298, 318-23, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

      . Specifically, Copeland sought reimbursement against Respondent Charles L. Ryan in his official capacity as the Director of the Arizona Department of Corrections. See Rule 2(a), Rules Governing Section 2254 Cases (requiring petitioner in state custody to "name as respondent the state officer who has custody”). For simplicity, we refer to Ryan as the “State.” See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” (citation omitted)).

      . Because we have jurisdiction under the collateral order doctrine, we need not consider the State’s alternative request that we issue a writ of mandamus. See Jackson v. Vasquez, 1 F.3d 885, 888 n.1 (9th Cir. 1993).

      . Our approach is consistent with that of other circuits. See United States v. Horn, 29 F.3d 754, 768-69 (1st Cir. 1994) (exercising jurisdiction to review a district court order requiring the government 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 requiring the government to pay under the CJA expenses incurred in connection with the psychiatric examination of an indigent defendant).

      . The only provision in the Federal Rules of \ Civil Procedure expressly authorizing the recovery of deposition expenses is Rule 30(g), which allows a party to recover certain deposition expenses when the party noticing the deposition either failed to attend the deposition or failed to subpoena a nonparty deponent who in turn failed to attend the deposition. That authorization does not apply here.