Bradley v. United States

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Precedential or Non-Precedential: Precedential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