Whether a government theory of prosecution lacking support in case law and contrary to the purpose of existing labor laws can be considered not 'frivolous' because no precedent in the circuit definitively foreclosed the theory or because a cursory reading of a footnote in a prior circuit decision was misused as the basis for the theory

QUESTIONS PRESENTED 1. For the purposes of denying an a claim for attorney’s fees from the federal government under the “Hyde Amendment,” may a government theory of prosecution be considered not “frivolous” because, even though it had no real support in case law and was actually contrary to the purpose of existing labor laws, “no precedent in our Circuit definitely foreclosed the theory”? 2. Or, may a finding of “frivolousness” for such a groundless theory be avoided because there appears, based on a “cursory reading” of a footnote in one prior circuit decision, a notion which the government took out of context and used as the basis of its theory? 3. Where the government fails to dispute, or even acknowledge, three well-pleaded grounds for a claim for attorneys fees under the “Hyde Amendment,” can that claim be denied by the district court without even allowing oral argument or conducting a hearing at which the clams could be examined?