KLEINFELD, Circuit Judge:
The issue before us is whether the government was substantially justified in taking the position that an undercover informant was not an employee.
I. FACTS
The United States challenges the award of attorney's fees granted to Horio under the Equal Access to Justice Act, 28 U.S.C. § 2412, for a petition for certification as a government employee brought under the Westfall Act, 28 U.S.C. § 2679(d)(3).
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