concurring in part and dissenting in part.
For the reasons discussed below, I concur in part and dissent in part. As a preliminary matter, I agree that we have jurisdiction of this appeal under the collateral order doctrine. Cf. United States v. Sacco, 430 F.2d 1304, 1305 (2d Cir.1970) (per cu-riam) (district court order authorizing expenditure of government funds for transcript of minutes of indigent defendant’s conspiracy trial held appealable under collateral order doctrine). I also agree that the Marshals Service cannot refuse to serve the subpoenas for the Yellow Thunder Camp litigants, as was conceded by counsel for the Marshals Service during oral argument en banc. See 28 U.S.C. § 1915(c) (“The officers of the court shall issue and serve all process, and perform all duties in such cases.”). However, the Yellow Thunder Camp litigants do not have the financial resources to pay the witness attendance fee and travel expenses for their subpoenaed witnesses. Unless the Marshals Service can be compelled to advance the necessary witness attendance fees and travel expenses or unless the fees and expenses need not be tendered with the subpoenas to the witnesses, service of the subpoenas alone will not significantly assist the Yellow Thunder Camp litigants in presenting their case.
The district court found that the sixteen witnesses identified by the Yellow Thunder Camp litigants were all necessary to the presentation of their case and ordered the Marshals Service to serve the subpoenas and pay the fees and expenses of the Yellow Thunder Camp witnesses.1 It is undisputed that the Yellow Thunder Camp litigants have no money to pay the witness fees and expenses. This approach appears analogous to that set forth in Fed.R. Crim.P. 17(b) for indigent criminal defendants. E.g., United States v. Wyman, 724 F.2d 684, 686 (8th Cir.1984). However, the Yellow Thunder Camp litigants are not indigent criminal defendants. The consolidated cases in the district court are civil proceedings: in No. CIV-81-5131 the United States filed an action against the Yellow Thunder Camp litigants, claiming that they illegally occupied part of the Black Hills National Forest and seeking injunctive and declaratory relief, and in No. CIV-81-5135 the Yellow Thunder Camp litigants filed an action against the United States Forest Service, claiming authority to occupy the Black Hills and alleging the Forest Service erroneously denied their application for a special use permit.
I fully agree that considerations of fairness and the interests of justice would support requiring the United States to pay the fees and expenses of witnesses for indigent civil litigants, particularly in cases like the present one in which the party proceeding in forma pauperis is the defendant in an action brought by the United States or in *1064civil rights cases, especially those involving incarcerated prisoners, see, e.g., Johnson v. Hubbard, 698 F.2d 286, 291 (6th Cir.) (Swy-gert, J., dissenting) (constitutional right of access to the courts), cert, denied, — U.S. -, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983). However, I am unable to find the express waiver of sovereign immunity necessary to order the affirmative expenditure of funds by the United States in 28 U.S.C. § 1915(c) or in 28 U.S.C. § 1825. For this reason, I concur in Part I of the majority opinion.
First, I agree that the in forma pauperis statute, 28 U.S.C. § 1915, in particular subsection (c), does not authorize the United States to pay the fees and expenses of witnesses subpoenaed for parties authorized to proceed in forma pauperis. See Johnson v. Hubbard, 698 F.2d at 289-90 (state prisoner civil rights action); Andrews v. Atkins, 100 F.R.D. 762, 764 (D.Kan.1984) (pro se prisoner action); Hudson v. Ingalls Shipbuilding Division, 516 F.Supp. 708, 709 (S.D.Ala.1981) (Title VII action). But see Moss v. ITT Continental Baking Co., 83 F.R.D. 624, 626 (E.D.Va. 1979) (Title VII action) (differentiating between witness disbursements and litigation expenses); Marks v. Calendine, 80 F.R.D. 24, 27 (N.D.W.Va.1978) (state prisoner civil rights action), aff'd sub nom. Flint v. Haynes, 651 F.2d 970 (4th Cir.1981), cert, denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); Ball v. Woods, 402 F.Supp. 803, 810 (N.D.Ala.1975) (state prisoner civil rights action), aff'd without published opinion sub nom. Ball v. Shamblin, 529 F.2d 520 (5th Cir.), cert, denied, 426 U.S. 940, 96 S.Ct. 2660, 49 L.Ed.2d 393 (1976); White v. Sullivan, 368 F.Supp. 292, 293 (S.D.Ala.1973) (state prisoner civil rights claim; no discussion). Section 1915(c) provides in part that “[witnesses shall attend as in other cases.” It does not authorize the government to pay or advance the fees and expenses for witnesses, unlike the specific provision in § 1915(b) for payment by the United States of the expenses of printing the record on appeal, preparing the transcript of proceedings before a magistrate or printing the record on appeal in the case of proceedings before a magistrate under 28 U.S.C. § 636(c).
Nor do I agree that 28 U.S.C. § 1825 authorizes the district court to order the United States to pay the witness fees and expenses for indigent civil litigants in proceedings other than for writs of habeas corpus or under 28 U.S.C. § 2255. See Hudson v. Ingalls Shipbuilding Division, 516 F.Supp. at 709; Dortly v. Bailey, 431 F.Supp. 247, 248 (M.D.Fla.1977) (indigent habeas corpus petitions). The language in the first paragraph is very broad and would appear to authorize the marshal to pay the fees and expenses of witnesses, even for the other party, in any case in which the United States or an officer or agency thereof is a party, upon the certificate of the United States attorney. I agree with the concurring opinion that 28 U.S.C. § 1825 applies in civil cases as well as criminal cases and, therefore, disagree with the Sixth Circuit’s characterization of this part of § 1825 as the “criminal law counterpart” of § 1915(c) in Johnson v. Hubbard, 698 F.2d at 290. However, when § 1825 is read as a whole, especially the third paragraph, it is clear that the first paragraph only authorizes the marshal to pay the fees of witnesses for the United States. The second paragraph authorizes the marshal to pay the fees of witnesses for parties authorized to proceed in forma pauperis in proceedings for writs of habeas corpus or under 28 U.S.C. § 2255. The third paragraph specifically authorizes the marshal to serve subpoenas issued on behalf of the United States or on behalf of a party proceeding in forma pauperis for a writ of habeas corpus or under 28 U.S.C. § 2255 without tendering to the witness the attendance fee and travel expenses. See generally S.Rep. No. 615, 89th Cong., 1st Sess., reprinted in 1965 U.S.Code Cong. & Ad.News 2901.
Finally, I agree that the district court could call the witnesses designated by the Yellow Thunder Camp litigants as its own witnesses pursuant to Fed.R.Evid. 614(a), appoint those who qualified as expert witnesses pursuant to Fed.R.Evid. 706(b), and order the government as a party to ad-*1065vanee the witnesses’ fees and expenses, subject later to taxation as costs against the nonprevailing party2 pursuant to 28 U.S.C. § 2412(a) (Supp. V 1981). Congress enacted the Federal Rules of Evidence by the Act of Jan. 2, 1975, Pub.L. No. 93-595, 88 Stat. 1926 (codified in 28 U.S.C. Federal Rules of Evidence). I cannot join Part II of the majority opinion because at this time the district court has neither called the Yellow Thunder Camp witnesses as its own witnesses nor appointed them as expert witnesses. At this time the district court has determined only that the Yellow Thunder Camp litigants are indigent and that they cannot present their case without these witnesses. In these circumstances in this civil case the district court cannot order the government to pay the fees and expenses of the Yellow Thunder Camp witnesses. Accordingly, I respectfully dissent from Part II.
As noted in the majority opinion, Fed.R. Evid. 614(a) provides only that the district court may call witnesses on its own motion or at the suggestion of a party. There is no reference to payment of witness fees and expenses by the government. I agree that this rule enabling the district court to call its own witnesses would be virtually meaningless unless there was some method of payment of the witnesses’ fees and expenses. Without advance government funding of witness fees and expenses for its own witnesses, the district court would face financial restraints similar to those facing the Yellow Thunder Camp. Nonetheless, it does not appear from the record that the district court has in fact called these witnesses itself. For this reason, I believe that our consideration of this question is premature.
With respect to the appointment by the district court of expert witnesses, the rule itself provides that only expert witnesses who consent to act as such shall be appointed. Fed.R.Evid. 706(a). The expert witness’ consent would eliminate the need to subpoena any expert witness so appointed and the necessity of tendering the attendance fee and travel expenses with the subpoena. In addition, the rule expressly provides that the district court may award expert witnesses so appointed “reasonable compensation in whatever sum the court may allow,” payable in non-condemnation civil actions by the parties “in such proportions and at such time as the court directs, and thereafter charged in like manner as other costs.” Id. 706(b). Thus, following the appointment of expert witnesses, the district court could order the government as a party to pay in advance part or all of the appointed expert witnesses’ compensation, subject later to taxation as costs. Cf United States v. R.J. Reynolds Tobacco Co., 416 F.Supp. 313, 316 (D.N.J.1976) (United States as a party expected to comply with orders for payment of compensation to expert witness appointed by court pursuant to Fed.R.Evid. 706). Here, the district court has not determined whether any of the witnesses would be qualified as expert witnesses or, if qualified, whether they would consent to so act, or appointed any expert witnesses. Had the district court appointed any expert witnesses pursuant to Fed.R.Evid. 706 and then ordered the United States as a party to pay some amount as advance compensation, subject later to taxation as costs, and the United States refused to do so, I would agree that such refusal could be the basis for an appropriate sanction, perhaps dismissal of the complaint. Id. However, that is not the situation presented here.
Accordingly, I would not reach the question of the district court’s authority to or*1066der the expenditure of government funds under either Fed.R.Evid. 614(a) or 706(b).
. The estimated total cost for the per diem, attendance fee and travel expenses for the Yellow Thunder Camp witnesses was in excess of $5,000.
. See, e.g., Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir.1981) (district court may award costs against litigant proceeding in forma pauperis; prisoner civil rights action), cert, denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982); Cagle v. Cox, 87 F.R.D. 467, 468, 472 (E.D.Va. 1980) (prisoner civil rights action; denied motion for government funds for expert witnesses; granted motion for retention of expert witnesses and taxation of fees and expenses as costs in the event that plaintiffs prevailed); Moss v. ITT Continental Baking Co., 83 F.R.D. 624, 625-27 (E.D. Va.1979) (no reimbursement of indigent civil plaintiffs counsel's litigation expenses; notes that witness disbursements may be taxed as costs); Maldonado v. Parasole, 66 F.R.D. 388, 392 (E.D.N.Y.1975) (taxing costs against nonpre-vailing party; both parties were indigent).