                        FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 13-50461
            Plaintiff-Appellee,
                                                  D.C. No.
                   v.                       5:09-cr-00043-VAP-1

 PETER HUGH POCKLINGTON,
         Defendant-Appellant.                       ORDER


                        Filed August 4, 2016

   Before: Andrew J. Kleinfeld, M. Margaret McKeown,
          and Milan D. Smith, Jr., Circuit Judges.

                                Order


                           SUMMARY*


                          Criminal Law

   The panel filed a published order denying Peter
Pocklington’s motion for attorney’s fees and costs under the
Hyde Amendment in a case in which this court reversed and
vacated Pocklington’s probation revocation and sentence on

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
2            UNITED STATES V. POCKLINGTON

the ground that the district court had no jurisdiction under 18
U.S.C. §§ 3564(d), 3565(c), to revoke probation after it had
expired.

    The panel held that assuming this outcome is construed as
a decision on the merits in favor of Pocklington—an issue the
government disputes—attorney’s fees are not warranted
because the government’s position was not “vexatious,
frivolous, or in bad faith.” The panel wrote that the issue
confronted in this appeal—whether the requirements for
extending probation under 18 U.S.C. § 3565(c) are
jurisdictional—was a matter of first impression before this
circuit, and this court had not addressed the impact of
§ 3565(c) on the circumstance of probation, invocation of
equitable tolling, or plain error review. The panel added that
Pocklington presented no evidence that the government
sought to “embarrass” or “annoy” Pocklington.


                         COUNSEL

Becky S. James and Jessica Rosen, James & Associates LLP,
Pacific Palisades, California, for Defendant-Appellant.

Joseph B. Widman, Chief, Riverside Branch Office; Jean-
Claude André, Chief, Criminal Appeals Section; Lawrence S.
Middleton, Chief, Criminal Division; Eileen M. Decker,
United States Attorney; Office of the United States Attorney,
Riverside, California; for Plaintiff-Appellee.
             UNITED STATES V. POCKLINGTON                    3

                          ORDER

    Peter Pocklington filed a motion for attorney’s fees and
costs under the Hyde Amendment, which permits such an
award to a prevailing party in a criminal case where the court
“finds that the position of the United States was vexatious,
frivolous, or in bad faith, unless the court finds that special
circumstances make such an award unjust.” Pub. L. No. 105-
119, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C.
§ 3006A historical and statutory notes). In Pocklington’s
appeal, we reversed and vacated Pocklington’s probation
revocation and sentence on the ground that the district court
had no jurisdiction under 18 U.S.C. §§ 3564(d), 3565(c), to
revoke probation after the probation had expired. United
States v. Pocklington, 792 F.3d 1036 (9th Cir. 2015).
Assuming this outcome is construed as a decision on the
merits in favor of Pocklington—an issue the government
disputes—attorney’s fees are not warranted because the
government’s position was not “vexatious, frivolous, or in
bad faith.”

    In assessing the nature of the government’s position, the
three components of the statute are “disjunctive; thus, the
defendant need only prove one of the three elements to
recover.” United States v. Manchester Farming P’ship,
315 F.3d 1176, 1182 (9th Cir. 2003), opinion amended on
denial of reh’g, 326 F.3d 1028 (9th Cir. 2003). Pocklington
does not assert that the government’s position was vexatious
or in bad faith. Rather, he relies entirely on the “frivolous”
ground. No matter which ground is at issue, “it is clear that,
‘[e]ven in its earliest form, the Hyde Amendment was
targeted at prosecutorial misconduct, not prosecutorial
mistake.’” United States v. Braunstein, 281 F.3d 982, 995
4             UNITED STATES V. POCKLINGTON

(9th Cir. 2002) (quoting United States v. Gilbert, 198 F.3d
1293, 1304 (11th Cir. 1999)).

    A case is frivolous when the “government’s position was
‘foreclosed by binding precedent or so obviously wrong as to
be frivolous.’” Braunstein, 281 F.3d at 995 (quoting Gilbert,
198 F.3d at 1304). We have described a frivolous position as
“groundless . . . with little prospect of success; often brought
to embarrass or annoy the defendant.” Id. at 995 (quoting
Gilbert, 198 F.3d at 1299). Although the “Government’s case
was not strong,” it was not barred by precedent, obviously
wrong, “brought to embarrass or annoy [Pocklington],” or in
the nature of “outlandish . . . prosecutorial misconduct.”
Manchester, 315 F.3d at 1184.

     The issue we confronted in this appeal—“whether the
requirements for extending probation under 18 U.S.C. § 3565
are jurisdictional”—was a matter of first impression before
our circuit. Pocklington, 792 F.3d at 1039. Although we had
previously referenced § 3565(c) as jurisdictional, we did not
explain the context of this term, which has been used in
multiple ways, and it was in a wholly different factual
scenario. See United States v. Castro-Verdugo, 750 F.3d
1065, 1070 (9th Cir. 2014). Nor had we addressed the impact
of § 3565(c) on the circumstance of a retroactive extension of
probation, invocation of equitable tolling, or plain error
review. At the time of briefing and argument, several circuits
had deemed forfeitable the claim Pocklington made for the
first time on appeal. See, e.g., United States v. Madden,
515 F.3d 601, 608 (6th Cir. 2008); United States v. Wimberly,
368 F. App’x 556, 558 (5th Cir. 2010); United States v.
Burcham, 91 F. App’x 820, 821 (4th Cir. 2004).
              UNITED STATES V. POCKLINGTON                      5

     Retroactive application was a novel issue, but in our
opinion we drew an analogy to a supervised release statute
with identical language, 18 U.S.C. § 3583(i), that had been
interpreted as jurisdictional in the real sense—meaning going
to the power of the court to hear the matter. See United States
v. Garrett, 253 F.3d 443, 449 (9th Cir. 2001); United States
v. Vargas-Amaya, 389 F.3d 901, 907 (9th Cir. 2004). That
analogy was appreciably strengthened by the Third Circuit’s
decision in United States v. Merlino, 785 F.3d 79, 81 (3d Cir.
2015), which was argued and decided after briefing and
argument in Pocklington. The Third Circuit held not only
that § 3583(i) was jurisdictional, but also, critically, that this
jurisdictional rule was not subject to equitable tolling. Id. at
87–88. The concurring opinion in that case characterized the
question as a “close issue.” Merlino, 785 F.3d at 94 (Ambro,
J., concurring).

    Finally, Pocklington presents no evidence that the
government sought to “embarrass” or “annoy” Pocklington.
Braunstein, 281 F.3d at 995. By all indications, the
government was sincerely interested in revoking
Pocklington’s probation for plausible violations of the
conditions of probation. Pocklington’s creditors reported to
the Probation Office that Pocklington was concealing
millions of dollars in assets in violation of a condition of his
probation that he make accurate financial disclosures.
Pocklington, 792 F.3d at 1038.

    After careful review of the record, including briefing and
argument on the merits and briefing on the Hyde
Amendment, we conclude, though the question is close, that
the government’s position was not frivolous. We decline to
assess fees against the government for testing an essentially
6            UNITED STATES V. POCKLINGTON

untested legal idea. Pocklington’s motion for attorney’s fees
and costs under the Hyde Amendment is DENIED.
