Whether the judicially inferred damages remedy under Bivens

1 Whether the judicially inferred damages remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), should be extended to the novel context of this case, which seeks to hold the former Attorney General and Director of the Federal Bureau of Investigation (FBI) personally liable for policy decisions made about national security and immigration in the aftermath of the September 11, 2001 terrorist attacks.We tied on this question, 5-5.2. Whether the former Attorney General and FBI Director are entitled to qualified immunity for their alleged role in the treatment of respondents, because it was not clearly established that aliens legitimately arrested during the September 11 investigation could not be held in restrictive conditions until the FBI con-firmed that they had no connections with terrorism.We tied on this question, 5-5.3. Whether respondents’ allegations that the former Attorney General and FBI Director personally condoned the implementation of facially constitutional policies because of an invidious animus against Arabs and Muslims are plausible, as required by Ashcroft v. Iqbal, 556 U.S. 662 (2009), in light of the obvious alter-native explanation—identified by the Court in Iqbal—that their actions were motivated by a concern that, absent fuller investigation, the government would unwittingly permit a dangerous individual to be released.We decided that Ashcroft and Mueller did not directly act with ethnic and religious motives. Meaning, they did not personally act in a discriminatory manner. We decided this with an 8-2 vote.