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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

P

ETER

W. C

OONS

,

Plaintiff-Appellant,

No. 02-15665

v.

D.C. No.

S

ECRETARY OF THE

U.S.

CV-00-04691-CRB

D

EPARTMENT OF THE

T

REASURY

,

OPINION

(Internal Revenue Service),

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

October 6, 2003—San Francisco, California

Filed September 1, 2004

Before: Procter Hug, Jr., Betty B. Fletcher, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Hug

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COUNSEL

Mary Dryovage, San Francisco, California, for the plaintiff-

appellant.

Abraham A. Simmons, Assistant United States Attorney, San

Francisco, California, for the defendant-appellee.

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OPINION

HUG, Circuit Judge:

Appellant Peter Coons was demoted by his employer, the

Internal Revenue Service (“IRS”). He alleges that he was

demoted in violation of his rights under the Rehabilitation Act

for discrimination because of a disability and for requesting

reasonable accommodations relating to his disability. Finally,

Coons alleges that the IRS demoted him in retaliation for

making disclosures protected by the Whistleblower Protection

Act (“WPA”), in violation of the Civil Service Reform Act.

We hold that the district court correctly found that Coons

is not disabled within the meaning of the Rehabilitation Act

and that he did not make out a prima facie case for retaliation.

However, because Coons made disclosures that are protected

under the Whistleblower Protection Act, we reverse in part

the district court’s grant of summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Coons worked for the IRS from 1970 until January 2001.

By January 1995, he was a Collection Division Chief and was

responsible for a staff of about 400 IRS employees. In early

1997, Coons began making disclosures regarding certain

actions taken by IRS officials. He complained to his supervi-

sor, Division Director Robert Ah Nee, of the inappropriate

conduct of a former IRS Regional Counsel who was repre-

senting a taxpayer in a collections matter. Coons claims that

this, and other disclosures, are the reason for the adverse

employment actions he suffered in 1998 and 1999.

Also in early 1997, Coons was given access to the Internet.

In August of that year, Deborah Gavina, while installing new

software on Coons’s computer, discovered that Coons used

his computer to view non-work related web sites. This eventu-

ally resulted in an investigation by the Office of Inspector

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General into Coons’s alleged misuse of his office computer.

In February 1998, Coons was detailed to the San Francisco

Regional Office pending the outcome of that investigation.

On June 22, 1998, Coons took sick leave, claiming symp-

toms resulting from the stress of work. In late August 1998,

Coons, through his attorney and doctor, claimed that he could

return to work, but that he would require reasonable accom-

modations to be made. Specifically, Coons’s doctor explained

that Coons suffered “continuing abdominal distress” and vari-

ous other stress-related ailments. Coons’s doctor stated that

Coons could return to work if he was not required to take “un-

planned extended absences from the home, and excessive

travel.” The IRS did not meet with Coons to discuss his

request for accommodation, but, in early September 1998, it

detailed Coons to a position in the Quality Program that

would not require extended absences from the home or exces-

sive air travel.

In December 1998, Coons filed a Whistleblower Protection

Act complaint with the Office of Special Counsel, stating that

his February 1998 detail to the San Francisco Regional

Office, allegedly the result of Coons’s computer misuse, was

actually the result of complaints he had made regarding

improprieties at the IRS. That complaint was eventually dis-

missed by an Administrative Law Judge in August 2000, and

the Merit Systems Protection Board upheld the dismissal.

Coons was notified of his right to appeal that dismissal to the

Federal Circuit Court of Appeals, but he did not do so.

In August 1999, as a result of the investigation of Coons’s

misuse of government computers, the IRS demoted Coons to

the position of Program Analyst and reduced his grade from

a GS-15 to a GS-14—roughly a $14,000 reduction in annual

pay. Coons appealed the demotion to the Merit Systems Pro-

tection Board and, after hearings in December 1999 and Janu-

ary 2000, the Administrative Judge denied Coons’s appeal. A

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three-member panel of the Merit Systems Protection Board

upheld that decision in November 2000.

In December 2000, Coons filed a complaint in district court

challenging the Board’s findings, alleging Whistleblower Pro-

tection Act violations, unlawful discrimination based on dis-

ability, unlawful discrimination based on age, and retaliation.

The district court dismissed Coons’s age discrimination claim

and granted summary judgment in favor of the IRS on the

whistleblower, retaliation, and disability discrimination

claims. Coons appeals the district court’s grant of summary

judgment.

DISCUSSION

Although appeals of Merit Systems Protection Board deci-

sions generally must be filed in the Federal Circuit Court of

Appeals, district courts have jurisdiction to review “mixed”

cases, in which an action involves both a Merit Systems Pro-

tection Board appeal and a discrimination claim. 5 U.S.C.

§ 7703(b)(2); see also Sloan v. West, 140 F.3d 1255, 1261

(9th Cir. 1998) (explaining section 7703 jurisdiction). This

court has jurisdiction to review the district court’s final judg-

ment pursuant to 28 U.S.C. § 1291.

I. Rehabilitation Act Claim

This court reviews a district court’s grant of summary judg-

ment of a Rehabilitation Act claim de novo. Brown v. Lucky

Stores, Inc., 246 F.3d 1182, 1187 (9th. Cir. 2001). “Viewing

the evidence in the light most favorable to the nonmoving

party, and drawing all reasonable inferences in her favor, we

must determine whether the district court correctly applied the

relevant substantive law and whether there are any genuine

issues of material fact.” Id.

Our first inquiry is whether Coons is a person with a dis-

ability as defined by the Rehabilitation Act. The standards

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used to determine whether an act of discrimination violated

the Rehabilitation Act are the same standards applied under

the Americans with Disabilities Act (“ADA”). 29 U.S.C.

§ 794(d); see also 29 C.F.R. § 1614.203(b); McLean v. Run-

yon, 222 F.3d 1150, 1153 (9th Cir. 2000).

[1] According to the ADA, an individual is disabled if that

individual (1) has a physical or mental impairment that sub-

stantially limits one or more of the individual’s major life

activities; (2) has a record of such an impairment; or (3) is

regarded as having such an impairment. Deppe v. United Air-

lines, 217 F.3d 1262, 1265 (9th Cir. 2000); see also 42 U.S.C.

§ 12102(2); 29 C.F.R. § 1630.2(g). Therefore, for summary

judgment to be appropriate, there must be no genuine issue of

material fact regarding whether Coons has an impairment that

substantially limits a major life activity, has a record of such

an impairment, or is regarded as having such an impairment.

A. Physical or Mental Impairment That Substantially

Limits a Major Life Activity

1. Physical or Mental Impairment

An impairment covered under the ADA includes any physi-

ological disorder or condition affecting body systems such as

the cardiovascular or digestive systems, and any mental or

psychological disorder such as emotional or mental illness. 29

C.F.R. § 1630.2(h).

In a letter to the IRS, Coons’s physician, states that Coons

suffers from physical and mental impairments, including

abdominal distress (affecting his digestive system), palpita-

tions, heart pounding, and chest pain (affecting his cardiovas-

cular system), and depression and panic disorder (emotional

or mental illnesses). Therefore, examining the facts in the

light most favorable to the non-moving party (accepting that

the doctor’s statements may be true), there is a genuine issue

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of material fact regarding whether Coons has such an impair-

ment.

2. Substantially Limited Major Life Activities

A major life activity is a function “such as caring for one-

self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.” 29 C.F.R.

§ 1630.2(I). To be substantially limited in any of these activi-

ties, a person must be unable to perform the major life activity

or be “significantly restricted as to condition, manner or dura-

tion under which [he] can perform a particular major life

activity as compared to the condition, manner or duration

under which the average person in the general population can

perform that same major life activity.” 29 C.F.R. § 1630.2(j);

see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.

184, 195 (2002); EEOC v. United Parcel Serv., Inc., 306 F.3d

794, 802 (9th Cir. 2002).

[2] At the district court summary judgment hearing, Coons

identified travel as the only major life activity that was limited

by his impairments.

1

There is no authority that describes air

travel as a major life activity. There is, however, authority

denying a plaintiff ADA relief on grounds that travel is not a

major life activity. See Reeves v. Johnson Controls, World

Servs., Inc., 140 F.3d 144, 152-53 (2d Cir. 1998) (holding that

“everyday mobility,” defined by plaintiff as, among other

things, “going to unfamiliar places that would involve staying

overnight,” was not a major life activity).

[3] Even if travel were a major life activity, Coons would

1

Coons does not argue that he is limited in the major life activity of

work. Such an argument would fail, however, because “the inability to

perform a single, particular job does not constitute a substantial limitation

in the major life activity of working.” Deppe, 217 F.3d at 1265. Coons,

in fact, admits that he is able to work at a variety of other jobs within the

IRS.

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have to show that he is either unable to travel, or that the con-

dition, manner, or duration under which he can travel is sig-

nificantly restricted as compared to that of an average person.

Coons does not argue that he cannot travel because of his

impairments, but only that he cannot travel extensively. Fur-

ther, he does not present any evidence that the condition,

manner, or duration under which he can travel is restricted in

any way other than not to travel extensively.

2

[4] Because Coons presents no evidence or legal authority

to show that his impairments substantially limit any major life

activities, we hold that he is not a disabled person under the

first ADA test.

B. Record of an Impairment That Substantially Limits

a Major Life Activity

To have a record of an impairment that substantially limits

a major life activity means to have “a history of, or [have]

been misclassified as having, a mental or physical impairment

that substantially limits one or more major life activities.” 29

C.F.R. § 1630.2(k); see also 42 U.S.C. § 12102(2)(B); Heisler

v. Metro. Council, 339 F.3d 622, 630 (8th Cir. 2003) (“[T]he

record must be of an impairment that substantially limits a

major life activity.”).

[5] Coons does not provide any evidence of a history of an

impairment that substantially limits any major life activity.

His only evidence, the letter from his doctor, does not estab-

lish such a record. Although the doctor states that Coons suf-

fers from various physical and mental impairments, and that

Coons received treatment for some of those impairments,

there is no allegation that any of the treated impairments sub-

stantially limited any major life activity.

2

He does not, for example, argue that he is unable to ride in a car, train,

or airplane, or that he is unable to manage even short distance flights. In

fact, there is evidence that Coons was able to travel a long distance during

this time for a family vacation.

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[6] Thus, because Coons presents no evidence of having a

history of an impairment that substantially limits a major life

activity, we hold that he is also not a disabled person under

the second ADA test.

C. Regarded as Having an Impairment That

Substantially Limits a Major Life Activity

A person is regarded as being disabled if “(1) a covered

entity mistakenly believes that a person has a physical impair-

ment that substantially limits one or more major life activities,

or (2) a covered entity mistakenly believes that an actual, non-

limiting impairment substantially limits one or more major

life activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471,

489 (1999); see also 29 C.F.R. § 1630.2(l)(1); Deppe, 217

F.3d at 1265 (“In ‘regarded as’ cases, the employer must per-

ceive the individual as having an actual disability under the

ADA.”).

Coons presents no evidence that the IRS regarded him as

having a physical impairment limiting any major life activi-

ties. Coons points only to a July 24, 1999 letter from his

supervisor that states, “You [Coons] may be eligible for dis-

ability retirement if you are unable, due to disease or injury,

to render useful and efficient service in your position.”

(Emphases added.) Clearly, the IRS was suggesting only that

if Coons is disabled as he claims to be, he may be able to

obtain disability benefits. Coons’s supervisor does not state

that he considers Coons to be eligible for such benefits, or that

Coons is disabled in any way.

[7] Coons presents no evidence that he is regarded as hav-

ing an impairment that substantially limits a major life activ-

ity. Therefore, he is not a disabled person under the third

ADA test.

[8] Coons fails all three ADA tests for determining whether

a person is disabled. Therefore, Coons is not a disabled person

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under the ADA and, consequently, he is not a disabled person

under the Rehabilitation Act. For that reason, Coons’s claim

that the IRS discriminated against him based on a disability

must fail as a matter of law. We therefore affirm the district

court’s grant of summary judgment on that claim.

3

II. Rehabilitation Act Retaliation Claim

Even though he is not disabled under the Rehabilitation

Act, we must still address Coons’s retaliation claim. See Heis-

ler, 339 F.3d at 630 n.5 (“the ADA prohibits an employer

from retaliating against an employee who seeks an accommo-

dation in good faith”).

[9] A prima facie case of retaliation requires a plaintiff to

show: “(1) involvement in a protected activity, (2) an adverse

employment action and (3) a causal link between the two.”

Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003)

(citation and internal quotation marks omitted). The plaintiff

must present “evidence adequate to create an inference that an

employment decision was based on an illegal discriminatory

criterion.” O’Connor v. Consol. Coin Caterers Corp., 517

U.S. 308, 312 (1996) (emphasis modified) (citation and inter-

nal punctuation omitted). In other words, Coons must estab-

lish a link between his request for a reasonable

accommodation and his demotion. See id.; see also Brooks v.

City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). Once

the plaintiff establishes a prima facie case, the employer has

the burden to “present legitimate reasons for the adverse

employment action.” Brooks, 229 F.3d at 928. If the employer

carries this burden, and plaintiff demonstrates a genuine issue

3

Because Coons is not disabled within the meaning of the Rehabilitation

Act, the IRS was not required to reasonably accommodate his disability.

However, we note that Coons does not dispute that the IRS, in fact, rea-

sonably accommodated his purported disability in September 1998 by

placing him in a position that would not require extensive travel. He

argues, however, that the IRS failed to fully accommodate him because it

did not engage in the interactive process at that time.

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of material fact as to whether the reason advanced by the

employer was a pretext, then the retaliation case proceeds

beyond the summary judgment stage. Id.

[10] Coons was engaged in a protected activity when he

requested that the IRS make reasonable accommodations for

his alleged disability. Coons also suffered an adverse employ-

ment action when he was demoted. However, Coons did not

establish a causal link between the two. The district court cor-

rectly held that there was no evidence of such a link. Coons

merely argued that the closeness in time between his engage-

ment in the protected activity and the adverse employment

action established causality. However, Coons’s request for

reasonable accommodations was made a full year before his

demotion. This distant time sequence was inadequate to show

a causal link between his protected activity of requesting rea-

sonable accommodations and the adverse employment action

he suffered (his demotion). Therefore, Coons did not make

out a prima facie case for retaliation.

[11] Moreover, the IRS presented ample evidence (1) of

Coons’s misuse of government computers, (2) that Coons

accessed sex-related sites on those computers, and (3) that

Coons lied in a subsequent investigation of his misuse of gov-

ernment computers. In fact, the Administrative Law Judge

thoroughly addressed the IRS’s purported reasons for demot-

ing Coons and devoted thirteen pages to the issue. After an

exhaustive review of the evidence, the judge found that Coons

did misuse his computer, that he did so intentionally, and that

he intentionally lied about it during the ensuing investigation.

Remarkably, Coons does not dispute this evidence. He merely

asserts the fact of his demotion as evidence of discrimination

based on his alleged disability. Although the misuse occurred

two years before the demotion, the investigation of that mis-

use concluded shortly before the IRS made the decision to

demote Coons.

[12] We hold that Coons failed to make out a prima facie

case of retaliation because he did not meet his burden of

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establishing a causal connection between his protected activ-

ity and his demotion. We further hold that the IRS presented

legitimate other reasons for the demotion and there was no

evidence that these reasons were merely a pretext. Therefore,

we affirm the district court’s grant of summary judgment on

this claim.

III. Civil Service Reform Act Claim/Whistleblower

Protection Act

In reviewing a Merit Systems Protection Board decision, a

court “shall review the record and hold unlawful and set aside

any agency action, findings, or conclusions found to be — (1)

arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence . . . .” 5 U.S.C.

§ 7703(c); see also Sloan v. West, 140 F.3d 1255, 1260 (9th

Cir. 1998).

Although Coons challenged in the district court the Merit

Systems Protection Board’s decision on several grounds relat-

ing to the Civil Service Reform Act, in this appeal he limits

his argument to the Whistleblower Protection Act claim.

4

There are four elements required to successfully prove a

whistleblower claim: “(1) the acting official has the authority

to take, recommend, or approve any personnel action; (2) the

aggrieved employee made a disclosure protected under sec-

tion 2302(b)(8) [Whistleblower Protection Act]; (3) the acting

official used his authority to take, or refuse to take, a person-

nel action against the aggrieved employee; (4) the acting offi-

4

In district court, Coons also challenged the Merit Systems Protection

Board’s decision by arguing (1) that the IRS’s stated reasons for his demo-

tion were not supported by substantial evidence and (2) that his constitu-

tional right to due process was violated. Coons does not present either

argument on appeal.

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cial took, or failed to take, the personnel action against the

aggrieved employee because of the protected disclosure.”

Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999)

(citation and internal quotation marks omitted).

There is no dispute that an acting official of the IRS, Ah

Nee, had and used his authority to take a personnel action

against Coons (prongs 1 and 3). The dispute regards whether

Coons’s disclosures were protected under the Whistleblower

Act (prong 2). Because some of Coons’s disclosures are pro-

tected under the Act, and because the Merit Systems Protec-

tion Board did not address causation (prong 4), we reverse the

district court’s grant of summary judgment on this count and

remand to the district court and instruct the court to remand

to the Merit Systems Protection Board to consider whether

Coons was demoted because he made these disclosures.

A. Taxpayer A

[13] Coons made disclosures to District Director Ah Nee

regarding the IRS’s handling of the cases of several taxpayers.

Coons complained that these taxpayers were receiving favor-

able treatment. In the case of Taxpayer A, Coons alleged that

a former Regional Counsel for the IRS was intervening in the

matter on the taxpayer’s behalf, and that he was violating

post-employment conflict of interest rules. The district court

held that this “was not a protected disclosure because it did

not involve government misconduct.” Whether or not a pro-

tected disclosure must implicate wrongdoing by current gov-

ernment employees, the Administrative Judge’s finding that

Coons’s disclosures regarding Taxpayer A are limited to alle-

gations about wrongdoing by a former employee is not sup-

ported by substantial evidence.

Coons clearly expressed concern that Taxpayer A’s attor-

ney was using his influence to corrupt the IRS’s collection of

taxes from Taxpayer A. Furthermore, Coons disclosed that

various officials to whom he complained about the attorney’s

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actions did nothing to address the problem. Current IRS offi-

cials have an obligation to enforce the post-employment eth-

ics laws against former officials. See, e.g., 5 C.F.R.

§ 2637.101(c)(6) (“Departments and agencies have primary

responsibility for the administrative enforcement of the post

employment restrictions found in the Act.”). Thus, Coons’s

disclosures implicated current IRS employees who were con-

ferring with Taxpayer A’s attorney in violation of the post-

employment restrictions of the Ethics in Government Act.

More importantly, it is clear from the record that Coons

alleged that current IRS staff were sharing information ille-

gally with Taxpayer A’s counsel. For example, the Merit Sys-

tems Protection Board’s April 11, 2000 decision states that

Coons “alleged that members of the Regional Counsel staff

made unauthorized disclosures to [Taxpayer A’s] attorney.”

Importantly, District Director Ah Nee admitted that Coons’s

disclosure addressed wrongdoing by current IRS employees.

The following is an excerpt of Ah Nee’s testimony:

Q: Did Mr. Coons ever raise any issues with you

that suggested a perception on his part that there

were irregularities or wrongdoing of any kind occur-

ring with respect to the handling of the Taxpayer A

case, other than the involvement of a former

Regional Counsel?

Ah Nee: He — yes. He did raise to me the concern

that there may have been disclosure by Regional

Counsel. . . .

Q: In other words that, in fact, there had been an—

an improper disclosure; is that correct?

Ah Nee: That’s right.

The Administrative Judge’s decision discusses neither

Coons’s disclosures regarding unauthorized communications

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between a current IRS official and Taxpayer A’s attorney nor

Ah Nee’s admission that Coons disclosed these leaks. Instead,

the decision states, counter factually, that Ah Nee testified

that Coons’s disclosures in the Taxpayer A case “dealt exclu-

sively with alleged, post-employment violations by the former

R[egional] C[ounsel].” The Administrative Judge’s finding

that Coons’s disclosures about wrongdoing in the Taxpayer A

case were limited to “alleged wrongdoing by a former

employee of the agency,” is not supported by substantial evi-

dence.

B. Taxpayer B

In the case of Taxpayer B, Coons claims to have made dis-

closures regarding Ah Nee’s unreasonable concessions in a

tax collections case. The Merit Systems Protection Board’s

finding that Coons did not make a protected disclosure is sup-

ported by sufficient evidence. The Board found that the testi-

mony of two witnesses regarding the meeting, at which Coons

allegedly made the disclosures, was more credible than

Coons’s own uncorroborated testimony. There is no indica-

tion that this finding is arbitrary, capricious, or an abuse of

discretion.

C. Taxpayer D

[14] Coons also alleges he made a protected disclosure

regarding a possible fraudulent refund for Taxpayer D. The

Merit Systems Protection Board held that even if Coons made

the statements he alleges he made to Ah Nee, the disclosures

are not protected. The Board held that the event

amounted to a normal disagreement between manag-

ers over a debatable matter of internal policy, and

that a disinterested observer, with knowledge of the

essential fact known to and readily ascertainable by

the appellant, could not reasonably have concluded

that it evidenced government wrong doing of the

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type contemplated by the [Whistleblower Protection

Act].

Coons made disclosures regarding the manual processing

of a large refund that he believed to be fraudulent for Tax-

payer D under highly irregular circumstances. Coons’s disclo-

sure cannot reasonably be characterized as a “normal

disagreement between managers over a debatable matter of

internal policy.” A “disinterested observer with knowledge of

the essential facts . . . reasonably [would] conclude” that a

disclosure alleging that the IRS, whose mission is to collect

taxes, improperly processed a large, fraudulent refund for a

wealthy taxpayer is an allegation of “gross mismanagement,

a gross waste of funds, [or] an abuse of authority.” See 5

U.S.C. § 2302(b)(8); Lachance, 174 F.3d at 1381. Therefore,

we hold that the Merit Systems Protection Board’s interpreta-

tion of this allegation as a policy disagreement, rather than a

protected disclosure, is contrary to law.

D. Remarks to Office of Inspector General

[15] Coons disclosed to investigators from the Office of the

Inspector General (“OIG”) that “IRS senior officials inter-

fered in some cases of wealthy or influential taxpayers result-

ing in preferential treatment.” Coons admits that “he did not

tell the agents who was giving or receiving the alleged prefer-

ence” or any other details. He also admits that he did not pur-

sue the matter further with the Office of Inspector General.

However, these statements, though unspecific, do satisfy

the requirements of the Whistleblower Protection Act. A dis-

closure is protected by the Act if “a disinterested observer

with knowledge of the essential facts known to and readily

ascertainable by the employee [could] reasonably conclude

that the actions of the government evidence gross mismanage-

ment,” a gross waste of funds, an abuse of authority, or a vio-

lation of any law, rule, or regulation. Lachance, 174 F.3d at

1381.

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IRS senior officials interfering in the tax cases of certain

wealthy individuals is certainly an abuse of authority and a

violation of law. The Merit Systems Protection Board abused

its discretion in finding that this disclosure was not protected

under the Whistleblower Protection Act.

E. Newspaper Disclosures

Coons gave interviews to both the San Jose Mercury News

and the New York Times about his first whistleblowing com-

plaint, and “the pressure to file favorable treatment to certain

taxpayers.” The Merit Systems Protection Board found that

Coons’s interviews with the newspapers were not protected.

The Board found that the interviews appeared to violate 26

U.S.C. § 6103 (governing confidentiality of taxpayer informa-

tion), and that Coons did not meet his burden under 5 U.S.C.

§ 2302(b)(8) of providing that these disclosures were not spe-

cifically prohibited by law. The Board found that although the

taxpayers’ names were not disclosed, they could be identified

from published reports. This finding was supported by sub-

stantial evidence. 26 U.S.C. § 6103(b)(2)(A).

5

Furthermore,

these disclosures do not support Coons’s whistleblower claim

because the newspaper interviews post-dated the IRS’s deci-

sion to demote Coons. See Willis v. Dep’t of Agric., 141 F.3d

1139, 1143 (Fed. Cir. 1998). Therefore, they are not protected

disclosures under the Whistleblower Protection Act.

F. Conclusion on Whistleblower Claim

[16] The district court erred in finding that the Merit Sys-

tems Protection Board’s decision on the whistleblower claim

5

At oral argument, Coons claimed that the identities of the taxpayers

were already public because he had provided the same information in the

Office of Special Counsel complaint filed earlier that year. However,

information specifically prohibited from disclosure (e.g., taxpayer identity

information per 26 U.S.C. § 6103(b)(2)(A)) remains prohibited from dis-

closure notwithstanding its inclusion in an Office of Special Counsel com-

plaint. See 5 U.S.C. § 1213(I).

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was not an abuse of discretion and was supported by substan-

tial evidence. We reverse the district court’s grant of summary

judgment on this claim.

CONCLUSION

Coons is not a disabled person as defined under the Reha-

bilitation Act. Further, Coons did not make out a prima facie

case for retaliation under that Act. He failed to present any

evidence to show that the IRS retaliated against him because

he requested reasonable accommodations. Finally, Coons may

have been subject to reprisals for disclosures protected under

the Whistleblower Protection Act. His disclosures are pro-

tected and, therefore, the whistleblower defense was available

to him. Because the Merit Systems Protection Board failed to

address causation in Coons’s Civil Service Reform Act claim,

we reverse the district court’s grant of summary judgment on

that claim, remand to the district court, and instruct the court

to remand this case to the Merit Systems Protection Board to

consider whether Coons was demoted because of his disclo-

sures.

The district court’s grant of summary judgment is

AFFIRMED in part and REVERSED in part.

Each party shall bear their own costs on appeal.

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