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holding "that the failure to file a report is not the same as a failure to file a required tax return"
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This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted July 13, 1999.
Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding.
Before B. FLETCHER, FERGUSON and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Appellant Leonard Larson ("Larson") appeals from the district court's grant of summary judgment in favor of Appellee Department of Veterans Affairs ("VA"). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1331.
The grant of a motion for summary judgment is reviewed de novo. See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id.
The parties are familiar with the relevant factual and procedural background. Larson alleges that the VA violated the Rehabilitation Act, 29 U.S.C. § 701et seq., by offering him a position inconsistent with his disability in a deliberate effort to interfere with his worker's compensation benefits. As part of his prima facie case against the VA, however, Larson must demonstrate that he is an "otherwise qualified handicapped individual." See Buckingham v. United States, 998 F.2d 735, 739-40 (9th Cir.1993); Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.1990); see also 29 C.F.R. § 1614.203(a)(6) (defining "qualified individual"). This he cannot do.
Indeed, his benefits were terminated by the Office of Worker's Compensation Programs, but were restored to him on appeal.
Larson concedes that he cannot perform the essential functions of his former position as respiratory therapist. Where a federal employee cannot perform the essential functions of his former job, the federal employer has an affirmative duty to seek a vacant position that the employee can perform. See 29 C.F.R.§ 1614.203(g). The employee, however, must make at least a facial showing that reassignment is possible by identifying some position for which he is qualified. See Buckingham, 998 F.2d at 740. Larson has failed to identify or suggest any vacant position to which he could be reassigned. The undisputed opinion of his physicians, moreover, is that Larson cannot perform the essential functions of any position at the VA hospital at which he was formerly employed.
Larson argues that he was qualified for the "position" he held at the time the VA offered him the temporary position - however, the "position" of receiving workers' compensation benefits while waiting for a suitable vacant position to come open at the VA does not qualify as a "position" under the statute.
Accordingly, because Larson has not raised a genuine issue regarding his status as a "qualified individual" under the Rehabilitation Act, the VA properly prevailed at summary judgment.
AFFIRMED.