DOJ has generally refused to argue that there is reasonable suspicion in order to keep open Supreme Court review if/when the Ninth Circuit takes a narrow view of the exception. Specifically, DOJ has wanted to avoid the situation in which the Ninth Circuit establishes a reasonable suspicion standard, finds reasonable suspicion, and thus prevents DOJ from being able to file a cert petition to reverse the Ninth Circuit’s conclusion that reasonable suspicion is required...

In the en banc decision today, the Ninth Circuit goes on to determine that there is reasonable suspicion and that DOJ therefore wins the case... Ordinarily, then, this would mean that DOJ cannot seek further review: After all, it won the case.

Fascinating.

Indeed.