       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

              GREGORY W. COFIELD,
                   Petitioner

                           v.

           DEPARTMENT OF DEFENSE,
                    Respondent
              ______________________

                      2016-1546
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. SF-0752-14-0114-B-1.
                ______________________

             Decided: September 14, 2016
               ______________________

   GREGORY W. COFIELD, Fairfield, CA, pro se.

    JIMMY MCBIRNEY, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BENJAMIN
C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
                  ______________________

  Before PROST, Chief Judge, NEWMAN and DYK, Circuit
                        Judges.
2                                     COFIELD   v. DEFENSE



PER CURIAM.
    Gregory Cofield appeals the final decision of the Merit
Systems Protection Board (“Board”) denying his petition
for enforcement of his settlement agreement with the
Department of Defense. For the reasons discussed below,
we affirm.
                       BACKGROUND
    This appeal concerns events taking place after Mr.
Cofield and the Department of Defense (“DoD”) executed a
settlement agreement which reinstated him to the posi-
tion of Store Associate at the Travis Air Force Base Com-
missary. Eleven days after the settlement agreement
became final, Mr. Cofield filed a petition for enforcement
with the Board in which he alleged that the DoD breached
the agreement. Mr. Cofield’s complaint was primarily
based on behavior by his supervisor which he believed
was hostile and in retaliation for his prior lawsuit. Mr.
Cofield also alleged that his supervisor (1) changed his
work schedule multiple times, (2) assigned him work
beyond his medical restrictions, (3) required that he
produce updated documentation regarding his medical
restrictions, and (4) did not allow him to work on his
petition for enforcement during work hours.
    In an initial decision, the administrative judge as-
signed to the case denied Mr. Cofield’s petition. In doing
so, she found that the settlement agreement did not
specify a work schedule and that the DoD treated Mr.
Cofield no differently than any other employee. The
administrative judge also found that there was no re-
quirement that Mr. Cofield be allowed to prepare his
petition on official time. Finally, the administrative judge
determined that the Board did not have jurisdiction to
hear Mr. Cofield’s retaliation claims premised on his
supervisor’s behavior and suggested he make use of the
grievance process instead.
COFIELD   v. DEFENSE                                         3



     Mr. Cofield timely filed a petition for review of the ini-
tial decision. On review, the Board affirmed the adminis-
trative judge’s factual findings.          The Board also
determined that the DoD had since provided Mr. Cofield
with appropriate accommodations for his medical re-
strictions, rendering that claim moot.
    However, the Board disagreed with the administra-
tive judge’s determination that it did not have jurisdiction
to hear Mr. Cofield’s retaliation claims. The Board ex-
plained that, in some circumstances, harassment and
retaliation could constitute bad faith noncompliance with
a settlement agreement and therefore be a violation of its
terms. The Board therefore remanded the petition back
to administrative judge to develop the record and deter-
mine whether the DoD acted in bad faith.
    On remand, the administrative judge allowed the par-
ties to submit additional evidence regarding Mr. Cofield’s
retaliation claims. In support of his claims, Mr. Cofield
provided affidavits from five of his coworkers. 1 The DoD
did not submit any evidence to counter these affidavits.
     Because the DoD did not rebut the contents of Mr. Co-
field’s submitted affidavits, the administrative judge
presumed them to be true and accurate. However, the
administrative judge found that the behavior of Mr.
Cofield’s supervisor did not rise to an actionable level.
Consequently, the administrative judge denied the peti-
tion.
   Mr. Cofield again petitioned the Board for review of
the administrative judge’s decision. After review, the
Board agreed with the administrative judge’s assessment



    1  Mr. Cofield had since transferred to a different
team. His submissions only focus on the eighteen months
between his reinstatement and subsequent transfer.
4                                     COFIELD   v. DEFENSE



of the evidence and affirmed the denial of his petition.
This appeal followed.
    We have jurisdiction under 5 U.S.C. § 7703(b)(1)(A).
                       DISCUSSION
     Our review of the Board’s decision is limited by stat-
ute. We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
    In his submissions, Mr. Cofield only appeals the
Board’s determination that his supervisor’s behavior did
not constitute a breach of his settlement agreement with
the DoD. He does not appeal the Board’s determination
that the DoD complied with the terms of the settlement
agreement regarding his work schedule, and has provided
appropriate accommodations for his medical restrictions.
    Because a settlement agreement is a contract, we re-
view it just as we review any other agreement. Link v.
Dep’t of the Treasury, 51 F.3d 1577, 1582 (Fed. Cir. 1995).
Every contract has an implied term that the parties will
act in good faith in executing the agreement; a contract
may be breached if a party acts in bad faith. Id. In some
circumstances, the actions of a supervisor towards an
employee after reinstatement, if retaliatory, may consti-
tute bad faith noncompliance with the terms of a settle-
ment agreement. 2 Gard v. Dep’t of Educ., 180 F. App’x




    2   The Board has held that, because it otherwise
lacks jurisdiction to hear claims of retaliation premised on
a settlement agreement, the proper avenue for these
claims is to bring a petition for enforcement of the agree-
COFIELD   v. DEFENSE                                     5



921, 922 (Fed. Cir. 2006). However, “‘[a] mere showing of
some frictions, misunderstandings, or unpleasantness
between the appellant and other employees or managers’
is not sufficient to meet the burden to establish that [an
agency] acted in bad faith with respect to the agreement.”
Id. at 923 (quoting Kuykendall, 68 M.S.P.R. at 323). To
determine whether bad faith noncompliance has occurred,
the Board has required that a petitioner must show “that
the agency’s proven retaliatory/harassing actions, under
the totality of the circumstances, amounted to an unjusti-
fied and substantial deprivation of her rights as incum-
bent of the position in question.” Kuykendall, 68 M.S.P.R.
at 324–25.
     Though we have never endorsed the Board’s “substan-
tial deprivation” test, we see no basis for overturning the
Board’s conclusion with respect to the conduct here.
                       CONCLUSION
    For the foregoing reasons, we affirm the Board’s deci-
sion and deny Mr. Cofield’s request for remedies.
                       AFFIRMED
                          COSTS
   Each party shall bear their own costs.




ment.    Kuykendall v. Dep’t of Veterans Affairs, 68
M.S.P.R. 314, 324–25 & n.8 (M.S.P.B. 1995).
