Can a defendant obtain attorney's fees and costs expended on an appeal?

Pursuant to FRAP 39, defendant seeks attorney's fees and costs expended on this appeal. Defendant alleges that the appeal is frivolous and without foundation given the holding in Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir.), cert. denied, 116 S.Ct. 379 (1995). Although there is solid authority militating against the award of attorneys' fees, there is also authority that supports appellant's claims. We believe that this appeal was neither frivolous nor unreasonable and therefore we deny defendant's request.