                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2002

Bradley v. USA
Precedential or Non-Precedential: Precedential

Docket No. 01-4103




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PRECEDENTIAL

       Filed July 25, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-4103

YVETTE BRADLEY,
       Appellant

v.

THE UNITED STATES OF AMERICA; UNITED STATES
CUSTOMS SERVICE; RAYMOND W. KELLY,
COMMISSIONER OF THE UNITED STATES CUSTOMS
SERVICE, in his official capacity; SAMUEL H. BANKS,
DEPUTY COMMISSIONER OF THE UNITED STATES
CUSTOMS SERVICE, in his official capacity; ROBERT J.
MCNAMARA, Acting Assistant Commissioner for the Office
of Field Operations, United States Customs Service, in his
official capacity; CHARLES WINWOOD, former Assistant
Commissioner for the Office of Field Operations, United
States Customs Service, in his office capacity; RICARDO
BOWEN, Passenger Service Representative of the United
States Customs Service at Newark Airport, in his official
capacity; KATHLEEN HAAGE, Port Director of the United
States Customs Service in the New York/Newark Area, in
her official capacity; UNITED STATES CUSTOMS
SUPERVISORY INSPECTOR LUCIANA, in his official
capacity; UNITED STATES CUSTOMS INSPECTORS,
Holding Badge Numbers 40211, 15538 and 37018, In
Their Official and individual capacities; AND AN
UNKNOWN NUMBER OF UNNAMED AND UNKNOWN
INSPECTORS AND SUPERVISORS OF THE UNITED
STATES CUSTOMS SERVICE, in their official and
individual capacities; MICHELLE MAZZARULLI,
United States Customs Inspector in her official and
individual capacities; JACKIE CASTLEBERRY, Customs
Inspector, in her official and individual capacities;




ANTHONY SCARINGELLA, Inspector, in his official and
individual capacities

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Civil No. 00-cv-02317
District Judge: The Honorable Nicholas H. Politan

Argued: June 4, 2002

Before: SCIRICA, BARRY, and WEIS, Circuit Judg es

(Opinion Filed: July 25, 2002)
       Alix R. Rubin, Esquire (Argued)
       Lowenstein Sandler
       65 Livingston Avenue
       Roseland, NJ 07068
        -and-
       Edward Barocas, Esquire
       American Civil Liberties Union
        of New Jersey Foundation
       35 Halsey Street, Suite 4B
       Newark, NJ 07102

       Attorneys for Appellant

       Susan C. Cassell, Esquire (Argued)
       Assistant U.S. Attorney
       Office of United States Attorney
       970 Broad Street, Room 700
       Newark, NJ 07102

       Attorney for Appellees

OPINION OF THE COURT

BARRY, Circuit Judge:

Much has been written about "border searches" and we
will not break much new ground here. We believe it

                                 2


appropriate, however, particularly in light of the tragedy of
September 11th and the anti-terrorism efforts being made
in its aftermath, to reprise what has been written in the
course of concluding that the border search at issue here
was well within the bounds of law. The order of the District
Court will, therefore, be affirmed.

I.

Introduction

Yvette Bradley, an African-American woman, brought this
Bivens action1 against the United States, the United States
Customs Service, and a number of customs inspectors,
supervisors, and officials. She alleged that her
constitutional rights were violated when, on April 5, 1999,
customs inspectors subjected her to a search of her
suitcase, purse and backpack, as well as a patdown, when
she arrived at Newark International Airport on a nonstop
international flight from the island of Jamaica. Bradley
argued that she was selected because of her race and
gender, in violation of her equal protection rights under the
Fifth and Fourteenth Amendments, and that the patdown
was an illegal search under the Fourth Amendment. 2 The
District Court granted defendants’ motion for summary
judgment, and Bradley now appeals. The District Court had
jurisdiction under 28 U.S.C. S 1331 and we have
jurisdiction pursuant to 28 U.S.C. S 1291. We review the
District Court’s grant of summary judgment de novo.
Chisholm v. McManimon, 275 F.3d 315, 321 (3d Cir. 2001).
_________________________________________________________________

1. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

2. Bradley also raised a privacy claim under the Ninth Amendment, a
procedural due process claim, a claim for supervisory liability, and
various other claims against the United States under the Federal Tort
Claims Act. She does not take issue with the District Court’s decision
regarding these claims and, accordingly, they are waived. Nagle v.
Alspach, 8 F.3d 141, 143 (3d Cir. 1993).

                                3


II.

The Patdown -- and the Fourth Amendment

While Bradley refers in passing to the search of her
luggage, her challenge is directed almost exclusively to the
patdown, albeit what she describes as the "intrusive
patdown," to which she was subjected at an immigration
checkpoint at the Newark International Airport. She argues
that in granting summary judgment, the District Court
failed to construe the facts in the light most favorable to
her as, of course, it was required to do given that she was
the non-moving party. The facts as relevant to her Fourth
Amendment claim are, however, largely undisputed. Those
facts, viewed against well-settled law, defeat that claim.

It is not disputed, for example, that Jamaica is
considered by Customs to be a source country for narcotics
and that Jamaica Airlines Flight 19, on which Bradley
arrived, is considered by Customs to be a high risk flight
for narcotics, although Bradley herself does not believe
either to be so. It is also not disputed that Bradley was
subjected to a patdown, and not a strip search, a body
cavity search, or any other type of highly intrusive search.
It is not disputed that the patdown was done over Bradley’s
dress by a female inspector in the presence of a second
female inspector and that Bradley’s skin was not directly
touched in any intimate area. It is not disputed that when
the patdown reached what Bradley calls her "groin area,"
her internal genitalia were not penetrated through the
dress. Crediting her version of the facts, the touching that
occurred involved the inspector "us[ing] her fingers to
inappropriately push on [Bradley’s] breasts and into the
inner and outer labia," Bradley aff. P 28, the latter
concededly part of the external genitalia of a woman.3
_________________________________________________________________

3. We note, without further comment, that the"us[ing] her fingers to
inappropriately push . . . into" language is a change from the "rub her
hands . . . over" language in the Complaint and Amended Complaint.
JA129, 357. While the District Court appeared to concentrate on the
language in the complaints rather than the affidavit, we will focus, as
does Bradley, on the affidavit while reaching the same result the District
Court reached.
                                4


Bradley, we note, was not wearing underwear and does not
dispute that had she been doing so, the additional layer of
cloth would have reduced any intrusion that took place.
And, of course, Bradley does not dispute that no drugs or
other contraband were found.

Neither does Bradley take issue with the law, nor could
she, for courts, including our Court, have long held that
routine searches at our nation’s borders are presumed to
be reasonable under the Fourth Amendment. See , e.g.,
United States v. Ramsey, 431 U.S. 606, 616 (1977); United
States v. Hyde, 37 F.3d 116, 118-20 (3d Cir. 1994); United
States v. Ezeiruaku, 936 F.2d 136, 140 (3d Cir. 1991).
Immigration checkpoints at international airports are the
functional equivalent of national borders. Almeida-Sanchez
v. United States, 413 U.S. 266, 273 (1973). As a sovereign
state, the United States has the right to "protect itself by
stopping and examining persons and property crossing into
this country." Ramsey, 431 U.S. at 616. 4 "Since the
founding of our Republic, Congress has granted the
Executive plenary power to conduct routine searches and
seizures at the border, without probable cause or a
warrant, in order to regulate the collection of duties and to
prevent the introduction of contraband into this country."
United States v. Montoya de Hernandez, 473 U.S. 531, 537
(1985). For example, Congress has empowered border
officials to detain and search "all persons coming into the
United States from foreign countries." 19 U.S.C.S 1582; see
also 19 U.S.C. S 1496 (authorizing customs officials to
search the baggage of persons entering the country); 19
C.F.R. S 162.6 (authorizing customs officials to inspect and
search all persons, baggage, and merchandise arriving from
foreign countries).

It has, of course, also long been true that our nation’s
historic concern for the integrity of its borders has been
_________________________________________________________________

4. Courts have also long held that an individual’s reasonable expectation
of privacy is lower at the border than in the interior of the country. See,
e.g., Carroll v. United States, 267 U.S. 132, 154 (1925). "[T]he Fourth
Amendment balance between the interests of the Government and the
privacy right of the individual is . . . struck much more favorably to the
Government at the border." United States v. Montoya de Hernandez, 473
U.S. 531, 540 (1985).

                                5


"heightened by the veritable national crisis in law
enforcement caused by [the] smuggling of illicit narcotics."
Montoya de Hernandez, 473 U.S. at 538 (citing United
States v. Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J.,
concurring). And it is beyond peradventure, as the Seventh
Circuit has noted, that "the events of September 11, 2001,
only emphasize the heightened need to conduct searches"
at our borders. United States v. Yang, 286 F.3d 940, 944
n.1 (7th Cir. 2002).

In Montoya de Hernandez, the Supreme Court’s most
recent case on border searches, the Court reiterated that,
because the Fourth Amendment’s balance of
reasonableness is qualitatively different at the international
border than in the interior, "routine searches" of persons
and their effects at the border "are not subject to any
requirement of reasonable suspicion, probable cause, or
warrant." 473 U.S. at 538 (citing Ramsey, 431 U.S. at 616-
19; Almeida-Sanchez, 413 U.S. at 272-73; and Carroll, 267
U.S. at 154). The Court had not previously determined what
level of suspicion would justify the detention of an incoming
traveler in a nonroutine border search and inspection. In
Montoya de Hernandez, however, the Court concluded that
an alimentary canal search was not "routine" and is
justified only if customs agents reasonably suspect that the
traveler is smuggling contraband in his or her alimentary
canal. "Reasonable suspicion" was defined as" ‘a
particularized and objective basis for suspecting the
particular person’ " of smuggling contraband. Id. at 541
(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)).
The Court explicitly declined, however, to determine, "what
level of suspicion, if any, is required for[other] nonroutine
border searches such as strip, body-cavity, or involuntary
x-ray searches." Id. at 541 n.4 (emphasis added).

In the course of concluding that an alimentary canal
search must be supported by reasonable suspicion, and
that reasonable suspicion supported the search of the
balloon swallower before it, the Court bemoaned the"subtle
verbal gradations" being developed by courts of appeals to
enunciate the Fourth Amendment standard of
reasonableness which "may obscure rather than elucidate
the meaning of the provision in question." 473 U.S. at 541.5
_________________________________________________________________

5. The Court noted by way of example that the Ninth Circuit in Montoya
de Hernandez used "clear indication" of smuggling language, 731 F.2d

                                6


The Second Circuit viewed this statement as "warning"
against the development of multiple gradations of suspicion
to be applied to different types of border searches. United
States v. Charleus, 871 F.2d 265, 268 n.2 (2d Cir. 1989).

While we have not had the occasion to address the
question left open in Montoya de Hernandez -- the level of
suspicion, "if any," necessary to conduct at least certain
types of nonroutine searches -- those court of appeals that
have done so agree that reasonable suspicion is required.
United States v. Gonzalez Rincon, 36 F.3d 859, 864 (9th
Cir. 1994); United States v. Yakubu, 936 F.2d 936, 939 (7th
Cir. 1991); United States v. Carreon, 872 F.2d 1436, 1442
(10th Cir. 1989); Charleus, 871 F.2d at 267; United States
v. Oyekan, 786 F.2d 832, 837-39 (8th Cir. 1986).

We are not, of course, dealing here with a strip search or
a body cavity search or any of the other typical nonroutine
searches, but, rather, with a patdown. While the Supreme
Court has never articulated what makes a border search
routine and has never explicitly classified patdowns as
routine, of those courts of appeals which have addressed
the patdown issue since Montoya de Hernandez, none has
held that a standard patdown at the border is a nonroutine
search requiring reasonable suspicion and all have held
_________________________________________________________________

1369, 1372 (9th Cir. 1984) and the Eleventh Circuit, on almost identical
facts, adopted a reasonable suspicion standard. United States v.
Mosquera-Ramirez, 729 F.2d 1352, 1355 (11th Cir. 1984). Prior to
Montoya de Hernandez, varying levels of suspicion were found to justify
various types of border searches. See, e.g., United States v. Dorsey, 641
F.2d 1213, 1218-19 (7th Cir. 1981) (adopting a case-by-case balancing
test to determine the precise level of suspicion needed to search and
declining to label the requisite degrees of suspicion); United States v.
Sandler, 644 F.2d 1163, 1166-69 (5th Cir. 1981) (requiring "mere
suspicion" to justify a routine border search and"reasonable suspicion"
for more intrusive searches such as a strip search); United States v.
Grayson, 597 F.2d 1225, 1228 (9th Cir. 1979) (discussing a "mere
suspicion" and "no suspicion" standard); United States v. Carter, 563
F.2d 1360, 1361 (9th Cir. 1977) (holding that "mere suspicion" was
necessary for patdown searches at the border); United States v. Kallevig,
534 F.2d 411, 413 n.4 (1st Cir. 1976) (a border search that is less
intrusive than a strip search requires no level of suspicion).

                                7


that such patdowns come within the "routine" border
search category and, thus, require no suspicion whatsoever.6
United States v. Beras, 183 F.3d 22, 26 (1st Cir. 1999);
Gonzalez-Rincon, 36 F.3d at 864 (luggage searches and
patdowns are routine and do not require reasonable
suspicion); Carreon, 872 F.2d at 1442; Oyekan 786 F.2d at
835; c.f. Charleus, 871 F.2d at 268 (the patdown in that
case was a routine border search requiring no level of
suspicion at all).7 We now join those courts, although we do
not foreclose the possibility that a patdown gone awry could
become so intrusive as to become a nonroutine search
requiring application of the reasonable suspicion standard.8
_________________________________________________________________

6. The Second Circuit has also held that lifting a woman’s skirt at the
border to look for contraband is a routine search not requiring any
suspicion. See, e.g., Charleus , 871 F.2d at 268; see also United States v.
Braks, 842 F.2d 509, 511-15 (1st Cir. 1988)(noting that the lifting of a
woman’s skirt to check for contraband was a routine search not
necessarily requiring any degree of suspicion).

7. Somewhat surprisingly, the government argues to us and argued
before the District Court, with the District Court finding it "undisputed,"
that "[a]t the border, Customs Inspectors can send someone for a
patdown with mere suspicion." JA47. The argument that "mere
suspicion" is required is presumably based on the U.S. Customs
Service’s Personal Search Handbook that, in discussing "Procedures
Applicable to Patdowns," states that "Some or Mere Suspicion is
Required." The sole support for this statement, however, is a 1975 Ninth
Circuit case which does not so clearly stand for the proposition for which
it is cited and which, in any event, has been effectively overruled by the
Ninth Circuit’s post-Montoya de Hernandez decision in Gonzalez-Rincon.

8. It appears that when the Seventh Circuit is called upon to decide the
issue it, too, will join. The Court, in Saffell v. Crews, 183 F.3d 655 (7th
Cir. 1999), although reviewing only a partial strip search, nonetheless
observed that the patdown which had preceded the strip search revealed
a bulge through Saffell’s clothes "in the most intimate area of her body,
a place where drugs are sometimes known to be secreted by women."
183 F.3d at 657. It found that "there was justification" for the patdown,
id., and did not even suggest that patting down the crotch area turned
the patdown into an intrusive patdown search requiring reasonable
suspicion. It is unclear, however, by the use of the word "justification"
whether it believed that the balancing test adopted in its 1981 Dorsey
case, see n.5 supra, continues to be viable after Montoya de Hernandez.
It appears, however, that, while not ignoring Dorsey, the Court
subsequently dropped that test when it held that there are but two

                                8


This, says Bradley, was just such a case, with the
patdown to which she was subjected so intrusive that,
although it was concededly not a body cavity or strip
search, it became "nonroutine," thereby requiring
reasonable suspicion which, she argues, did not exist. We
need not decide whether the customs inspectors reasonably
suspected that Bradley was smuggling contraband because
we conclude that the patdown was not so intrusive as to be
transformed into a nonroutine border search.

Bradley has not pointed us to any court of appeals’
decision subsequent to Montoya de Hernandez which has
held that on a border search even an "intrusive" patdown is
nonroutine and must be supported by reasonable
suspicion. See n.9 infra. Rather, she relies for this
proposition on Anderson v. Cornejo, 199 F.R.D. 228 (N.D.
Ill. 2000), a decision which simply does not do for Bradley
what it did for the one named plaintiff in that class action
who survived a motion for summary judgment. Viewing the
facts in her favor, the District Court found that the plaintiff
was subjected to an intrusive patdown search which
involved the customs inspector pushing her hand through
plaintiff ’s clothes and her finger into plaintiff ’s vagina six
times causing pain. The Court found that this was"close
enough to a cavity search and done repeatedly enough to
be more than just a standard patdown search," 199 F.R.D
at 260-61, and that reasonable suspicion did not exist. The
Court noted two other types of conduct that, in its view,
would cause a patdown to become so intrusive that it could
be justified only by reasonable suspicion. First, it suggested
that a patdown in which an "inspector reaches under the
traveler’s clothes, particularly in the breast and crotch
area" would require reasonable suspicion. Id. at 258. As an
example, the Court cited an earlier incarnation of Saffell v.
Crews, discussed above in note 8, where Saffell alleged (an
_________________________________________________________________

categories of border searches -- routine searches that require no
suspicion and nonroutine searches that require reasonable suspicion.
United States v. Johnson, 991 F.2d 1287, 1291-92 (7th Cir. 1993).
Moreover, to employ a balancing test after Montoya de Hernandez would
contravene the Supreme Court’s warning against multiple gradations of
suspicion.

                                9


allegation later disproved at a bench trial) that"the
inspector reached under Saffell’s bra and under her
underwear, examining Saffell’s entire pubic area and
inserting her finger in Saffell’s vagina." Id. at 258 n.33.
Second, the Court suggested that the "[f]ondling of a
traveler’s genital area, breasts, or buttocks area during a
patdown would also constitute an intrusive patdown." Id. at
258. The Court defined "fondling" as touching"in a sexual
or sexually suggestive manner." Id. at 259. It noted,
however, that even an "aggressive" patdown in the crotch or
breast area would be sufficiently intrusive to require
reasonable suspicion. Id.

Anderson, we reiterate, is the sole decision on which
Bradley’s argument depends. There is, however, nothing in
Anderson, either in the conduct it was reviewing or in the
conduct that it hypothesized could warrant relief, that
comes close to that which Bradley describes. While, as the
District Court observed in Bradley’s case, "[p]enetration of
[a woman’s] internal genitalia, absent reasonable suspicion,
would in all likelihood constitute an unreasonable search,"
JA28-29, customs officials as a matter of standard
procedure are permitted to feel over clothing for bulges in
an area known by them as a common place for hiding
contraband. JA29. That is precisely what they did here, and
the District Court correctly rejected Bradley’s Fourth
Amendment claim.

This was, no doubt, a disagreeable experience for
Bradley. That it was not, in our view, a constitutional
violation does not mean, in the words of the Saffell Court,
"that Customs agents have free license to exceed what is
reasonable and proper under the law in order to accomplish
their important responsibilities. They must be sensitive to
their intrusive powers and not abuse and misuse those
powers . . . ." Saffell, 183 F.3d at 659.

One final note. The District Court concluded that even if
Bradley had made out a prima facie claim of a
constitutional violation, the three named customs
inspectors would be entitled to qualified immunity. Given
our conclusion that no Fourth Amendment violation was
stated, we need not reach this issue. We note, however,
that in April 1999, when Bradley arrived at the Newark

                                10


International Airport, there was no law post-Montoya de
Hernandez, much less "clearly established" law, that at our
nation’s borders even an intrusive patdown search was
anything other than "routine" such that it required
reasonable suspicion.9

III.

Equal Protection Violation

The fact that there was no Fourth Amendment violation
does not mean that one was not discriminatorily selected
for a search. Bradley alleges that the defendants violated
her right to equal protection under the Fifth and
Fourteenth Amendments to the United States Constitution
when customs officials selected her for a luggage and then
a patdown search because she was an African-American
female.10 To make an equal protection claim in the profiling
context, Bradley was required to prove that the actions of
customs officials (1) had a discriminatory effect and (2)
were motivated by a discriminatory purpose. Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-66
(1977) (race discrimination); Washington v. Davis, 426 U.S.
229, 239-42 (1976) (race discrimination); Chavez v. Illinois
State Police, 251 F.3d 612, 635-36 (7th Cir. 2001) (racial
profiling) (citing Personnel Adm’r of Mass. v. Feeney, 442
U.S. 256, 272-74 (1979) (gender discrimination). Bradley’s
equal protection claim is bereft of proof.
_________________________________________________________________

9. Aside from Anderson, Bradley cites three post-Montoya de Hernandez
cases for the proposition that "[i]n April 1999, the law was clearly
established that reasonable suspicion was required to conduct an
intrusive patdown search." App. Br. at 17. None stands for that
proposition. One involved the search of a suitcase, not a patdown; the
second involved an alimentary canal search, with the patdown that
preceded that search not challenged; and the third, our decision in
United States v. Hyde, specifically stated that"[w]e have no occasion
here to speak to [that issue]." 37 F.3d at 118 n.1.

10. Bradley also avers that black women are generally targeted by
customs officials for airport searches at Newark International Airport. As
the District Court properly noted, however, this is not a class action.

                                11


To prove discriminatory effect, Bradley had to show that
she is a member of a protected class and that she was
treated differently from similarly situated individuals in an
unprotected class. Chavez, 251 F.3d at 636; see also United
States v. Armstrong, 517 U.S. 456, 469 (1996); Andrews v.
City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990).
Bradley, an African-American woman, is clearly a member
of a protected class. Thus, our sole inquiry under this
prong of the analysis is whether Bradley submitted
evidence that customs officials treated her differently from
similarly situated members of an unprotected class.
Discriminatory effect may be proven by naming similarly
situated members of an unprotected class who were not
selected for the same search or, in some cases, by
submitting statistical evidence of bias. Chavez , 251 F.3d at
636.11
While her primary complaint is, again, directed to the
patdown, Bradley also argues that customs officials
selected her for the luggage search based on the fact that
a group of unidentified but similarly situated white males
-- similarly situated because they were wearing baseball
caps while she was wearing a wool designer hat with two
braids hanging down the sides -- were not selected to have
their luggage searched. Even if we assume that the white
males were similarly situated, an assumption we are
somewhat loathe to make, Bradley failed to submit any
evidence that she was unfairly singled out. The mere fact
_________________________________________________________________

11. In profiling cases, where it is often difficult to submit direct evidence
that members of an unprotected class were not targeted for a search,
statistical evidence of discrimination may be the only means of proving
a discriminatory effect. As the Seventh Circuit explained:

       In a meritorious selective prosecution claim, a criminal defendant
       would be able to name others arrested for the same offense who
       were not prosecuted by the arresting law enforcement agency;
       conversely, plaintiffs who allege that they were stopped due to racial
       profiling would not, barring some type of test operation, be able to
       provide the names of other similarly situated motorists who were not
       stopped.

Chavez, 251 F.3d at 640. And "[w]hile it is true that statistics alone
rarely state a violation of equal protection . . . they can be sufficient to
establish discriminatory effect." Id.

                                12


that a few unidentified white males on a flight of many
passengers were not selected when Bradley was does not,
without more, demonstrate a discriminatory effect. As to
her selection for a patdown search, Bradley has conceded
that the only other person on her flight of whom she was
aware who was selected for a patdown search was a white
male who, we note, was found carrying drugs. This
certainly does not indicate discrimination. Finally, Bradley
failed to submit any statistical evidence of bias. There was,
then, no evidence of discriminatory effect before the District
Court.

Bradley does not contest this conclusion; rather, she
argues that she failed to meet her burden of proof because
the District Court restricted discovery and then granted
summary judgment prematurely. "[W]e review a claim that
the district court has prematurely granted summary
judgment for abuse of discretion." Pastore v. Bell Telephone
Co. of Penn., 24 F.3d 508, 510 (3d Cir. 1994). Although
Bradley claims that additional discovery was critical to her
case, she failed to file an affidavit pursuant to Federal
Rules of Civil Procedure 56(f) identifying "with specificity
what particular information is sought; how, if uncovered, it
would preclude summary judgment; and why it has not
previously been obtained." St. Surin v. Virgin Island Daily
News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994) (citation and
internal quotations omitted). We have made clear that, in
all but the most exceptional cases, failure to comply with
Rule 56(f) is fatal to a claim of insufficient discovery on
appeal. Pastore, 24 F.3d at 511 (citing Falcone v. Columbia
Pictures Indus., Inc., 805 F.2d 115, 117 n.2) (3d Cir. 1986)).
While Bradley argues that she constructively met the Rule
56(f) affidavit requirement, we have generally rejected
constructive compliance arguments. See. e.g., Radich v.
Goode, 886 F.2d 1391, 1394 (3d Cir. 1989). Given the
strong presumption against a finding of constructive
compliance with Rule 56(f), the District Court did not abuse
its discretion when it granted summary judgment without
allowing additional discovery.12
_________________________________________________________________

12. And this is not one of the "exceptional" cases falling outside of the
general rule that constructive compliance with Rule 56(f) will not suffice.

                                13


The discovery Bradley now says she needed was discovery she had
received, including the documents relating to her entry on April 5, 1999;
discovery that was irrelevant to her case; or discovery that did not exist
-- for example, ten years of "incident logs and Search and Seizure
Reports" concerning passengers arriving on Flight 19 from Jamaica. The
government has advised that there are no such records and, even if
there were, prior to late 1999 "no notations of the race" -- or
presumably, the gender -- "of passengers sent for secondary inspections
and/or pat-down searches were required to be kept." Appellee’s Br. at
17.
Evaluating the record that was before the District Court,
we conclude that Bradley failed to present evidence that,
when viewed in the light most favorable to her, would
demonstrate a "discriminatory effect." Accordingly we need
not determine, as the District Court did not need to
determine, whether the customs officials acted with a
"discriminatory purpose" when they selected Bradley for the
luggage and patdown searches.

IV.

Conclusion

The order of the District Court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                14
