concurring in part and concurring in the judgment:
I join the court’s opinion to the extent it rejects Doe’s due process claim. With respect to Doe’s equal protection claim, I join only the portion of the opinion holding that Doe’s termination resulted “from an individualized determination that his case represented a threat to the national security mission of the agency.”
The court’s alternative reason for rejecting Doe’s equal protection claim — that Doe failed to present any “evidence” showing that the CIA had a blanket policy against homosexuals — is, to my mind, mistaken. The two statements contained in Doe’s affidavit — two CIA officials said his homosexuality violated CIA regulations — surely qualify as evidence. Both constitute admissions by a party-opponent. See Fed. R.Evid. 801(d)(2). Are the statements evidence of a blanket CIA policy against homosexuals? My colleagues think not. But at the summary judgment stage the court must (1) believe the evidence of the non-moving party; and (2) draw all justifiable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). The reference to “regulations” in the statements Doe recites should therefore be taken to mean internal policy guidelines. Given the general nature of the remarks of the CIA officials, it is logical to infer that they were aimed at homosexuality itself, not just Doe’s activities. This is precisely how Chief Justice Rehnquist, in his opinion for the Court in Webster v. Doe, 486 U.S. 592, 602, 108 S.Ct. 2047, 2053, 100 L.Ed.2d 632 (1988), read Doe’s affidavit. The two statements in the affidavit, the Chief Justice wrote, support Doe’s claim that a “pervasive discrimination policy exists in the CIA’s employment practices regarding all homosexuals.” 486 U.S. at 602, 108 S.Ct.. at 2053. If the Supreme Court’s opinion in this regard is not the law of the case, it is something sufficiently similar to warrant our respect.
The problem here is not that Doe presented “no evidence,” but that he may not have presented enough. As the nonmoving party having the burden of proof at trial, Doe had to counter the CIA’s summary judgment motion with sufficient evidence to enable a jury to return a verdict for him. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. The test is basically the same as that governing motions for directed verdicts or judgments n.o.v. — “if, under the governing law, there can be but one reasonable conclusion as to the verdict. If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed.” Anderson, 477 U.S. at 250-51, 106 S.Ct. at 2511 (citation omitted). The statements in Doe’s affidavit probably fall short, but there may be more to consider. Doe also relied upon evidence reported in Dubbs v. CIA, 866 F.2d 1114 (9th Cir.1989). See Memorandum of Points and Authorities in Support of Plaintiff’s Cross-Motion for Partial Summary Judgment and in Opposition to Defendant’s Motion for Summary Judgment, at 21-22 (June 25, 1990). Dubbs held that the plaintiff there had presented suffi-*1326dent evidence to survive summary judgment on her claim that she had been denied a security clearance in 1981 pursuant to a CIA anti-homosexual policy. The court of appeals cited a March 1981 letter to the plaintiff from the Director of Security for the CIA and the “testimony” of a former CIA Security Director.
The events recounted in Dubbs took place nearly at the same time as the events in Doe’s case. Can Doe rely on the evidence recounted in the Dubbs opinion? Rule 56(c), Fed.R.Civ.P., provides that district courts should base their evaluation of material facts claimed to be in dispute on “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” The recitation of evidence in a judicial opinion is not within any of these categories. But courts routinely consider “any material that would be admissible or usable at trial.” 10A C. Wright, A. Miller & M. Kane, Federal PRACTICE & Procedure § 2721, at 40 (2d ed. 1983), and, according to some authorities, courts considering a motion for summary judgment may appropriately take judicial notice of the record of “other cases involving the same subject matter.” Id. § 2723, at 67. If we followed this approach (the issue is unresolved in this circuit), the statements set forth in Dubbs would have to be considered. Properly authenticated, these statements would be admissible in Doe’s trial on the issue of the existence of a CIA blanket policy. The court of appeals in Dubbs held that the statements alone were enough to get to a jury on the blanket policy issue {see 866 F.2d at 1119). The Dubbs evidence plus the evidence in Doe’s affidavit would surely be enough to get the blanket question to the jury in Doe’s case, assuming — as I do, but only arguendo— that discrimination on the basis of homosexuality violates the Constitution.
But these questions regarding the sufficiency of Doe’s affidavit and what material may be taken into account on motions for summary judgment (and the constitutionality of the alleged CIA policy) are unnecessary to decide in this case. As the majority opinion holds, Doe was fired, not because of any blanket CIA policy, but for decidedly individualized reasons. That disposes of his equal protection claim. I would rest the judgment on that alone.