Full Opinion

Case: 26-1728 Document: 35 Page: 1 Filed: 10/26/2026 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ ROSIE CAMACHO, Petitioner v. DEPARTMENT OF THE ARMY, Respondent ______________________ 2026-1728 ______________________ Petition for review of the Merit Systems Protection Board in No. SF-1221-23-0283-W-1. ______________________ Decided: October 26, 2026 ______________________ ROSIE CAMACHO, Victorville, CA, pro se. STEPHEN J. SMITH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by ALBERT S. IAROSSI, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________ Before REYNA, BRYSON, and HUGHES, Circuit Judges. PER CURIAM. Case: 26-1728 Document: 35 Page: 2 Filed: 10/26/2026 2 CAMACHO v. ARMY Rosie Camacho petitions for review of a decision of the Merit Systems Protection Board denying her request for corrective action. Because Ms. Camacho fails to identify any reversible error, we affirm. I Ms. Camacho served as a GS-346-13 Supervisory Lo- gistics Management Specialist with the Army (agency). Be- tween October 2020 and February 2023, Ms. Camacho received (i) a letter of reprimand, (ii) an allegedly discipli- nary email, (iii) a one-day suspension for insubordination, and (iv) a seven-day suspension. In April 2023, Ms. Camacho filed an individual right of action (IRA) ap- peal with the Board, alleging that these four actions con- stituted retaliation for 14 disclosures she made to supervisors and various other agencies. These disclosures generally comprised reports of sexual harassment, misuse of government property, and improper use of authority. An administrative judge of the Board issued an initial decision denying Ms. Camacho’s request for corrective action, S.A. 8, 1 and Ms. Camacho filed a petition for review by the full Board, S.A. 49. In February 2026, the administrative judge’s initial decision became final because the Board lacked quorum. S.A. 1. Ms. Camacho timely appeals, and we have jurisdiction under 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9). II We affirm the Board’s decision unless it is “(1) arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or 1 S.A. refers to the Supplemental Appendix attached to the Respondent’s brief. ECF No. 25. Appx refers to the Petitioner’s Appendix. ECF No. 17. Case: 26-1728 Document: 35 Page: 3 Filed: 10/26/2026 CAMACHO v. ARMY 3 (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). On appeal, Ms. Camacho argues that the Board failed to consider discovery deficiencies and misapplied the legal framework set forth in the Whistleblower Protection Act. We evaluate each argument in turn. A Ms. Camacho alleges that the Board failed to consider material facts due to the agency’s “incomplete and inacces- sible discovery production.” Pet. Br. 4. 2 The missing evi- dence allegedly includes “communications and documents produced in unreadable formats, despite Petitioner’s re- peated requests for assistance.” Id. But Ms. Camacho does not persuasively explain on appeal how the existence of such “unreadable” documents demonstrates error in the Board’s decision. Rather, Ms. Camacho’s argument boils down to mere speculation that the agency possessed evi- dence that, if made accessible, would have bolstered her IRA appeal. See Pet. Reply Br. 3. Hypothetical harm is not enough to demonstrate reversible error. Cf. Devine v. Brisco, 733 F.2d 867, 873 (Fed. Cir. 1984) (“[A] mere con- jectural possibility of prejudice cannot suffice as a basis for inferring actual prejudice.”). To the extent Ms. Camacho is alleging that the Board abused its discretion in denying her request for assistance with discovery, we disagree. The Board denied Ms. Camacho’s request to “assist with discovery” for failure to meet the “Board’s requirements under § 1201.73(c)(1) 3 2 Citations to Petitioner’s brief refer to the page numbers as designated by ECF. 3 Title 5 of the Code of Federal Regulations, Sec- tion 1201.73(c)(1), lists the procedures required to file a motion to compel, including that “[t]he requesting party Case: 26-1728 Document: 35 Page: 4 Filed: 10/26/2026 4 CAMACHO v. ARMY and/or [its April 2023] Order.” Appx 200–01. Such proce- dural issues relating to discovery “fall within the sound dis- cretion of the [B]oard,” and “[t]his court will not overturn the [B]oard on such matters unless an abuse of discretion is clear and harmful.” Barrett v. Soc. Sec. Admin., 309 F.3d 781, 786 (Fed. Cir. 2002) (citation omitted). In the first in- stance, Ms. Camacho fails to show that the Board’s denial was an abuse of discretion. Ms. Camacho’s arguments also fail for a second reason: she does not explain how any al- legedly inaccessible documents would have altered the out- come of her case such that their exclusion constituted reversible error by the Board. We therefore decline to dis- turb the ruling of the Board on this ground. B Next, Ms. Camacho alleges factual and legal deficien- cies in the Board’s application of 5 U.S.C. § 1221(e). Under this section, the Board must order corrective action if it de- termines that the appellant’s protected disclosure was a “contributing factor” in the agency’s decision to take a per- sonnel action, unless the agency establishes by “clear and convincing evidence” that it would have taken the same personnel action in the absence of the disclosure. Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1322 (Fed. Cir. 1999). To assess whether the agency would have taken the same personnel action in the absence of the disclosure, the Board considers the Carr factors: (1) the strength of evidence sup- porting the agency’s personnel action, (2) the existence and must serve a copy of the motion on the other party or non- party[,] . . . discuss the anticipated motion with the oppos- ing party or nonparty, and . . . make a good faith effort to resolve the discovery dispute and narrow the areas of disa- greement.” 5 C.F.R. § 1201.73(c)(1). The motion must also include certain statements along with copies of the original request and a response to that request. Id. § 1201.73(c)(1)(i)–(iii). Case: 26-1728 Document: 35 Page: 5 Filed: 10/26/2026 CAMACHO v. ARMY 5 strength of any retaliatory motive, and (3) evidence that the agency takes similar actions against similarly situated employees who are not whistleblowers. Miller v. Dep’t of Just., 842 F.3d 1252, 1259–62 (Fed. Cir. 2016) (citations omitted). Ms. Camacho first argues that the Board erred in its contributing-factor analysis by failing to consider material facts necessary to “properly evaluate temporal proximity and Agency knowledge” and by misapplying the “contrib- uting factor” standard under 5 U.S.C. § 1221(e)(1). Pet. Br. 4. These arguments fail because Ms. Camacho does not point to any resulting harm. Indeed, the Board ultimately found Ms. Camacho’s protected disclosures to be contrib- uting factors, 4 S.A. 27–28, so any purported deficiency in the Board’s contributing-factor analysis is harmless. See Kewley v. Dep’t of Health & Hum. Servs., 153 F.3d 1357, 1366 (Fed. Cir. 1998). Ms. Camacho also argues that the Board erred in its analysis of whether the agency would have sought the same personnel action absent the protected disclosures be- cause the Board “failed to consider evidence demonstrating retaliatory motive” and misapplied the “clear and convinc- ing” standard under 5 U.S.C. § 1221(e)(2). Pet. Br. 4–5. Not so. The Board explicitly assessed whether “the agency can prove by clear and convincing evidence that it would have taken the same personnel action absent the disclosure,” S.A. 28, by carefully evaluating each personnel action un- der all three Carr factors. See S.A. 28–39. The Board ulti- mately found that sworn statements and detailed substantive reasoning submitted by the agency constituted strong evidence in support of the agency’s actions and 4 Ms. Camacho acknowledged in a later filing before this court that “the MSPB found . . . [her] protect[ed] activ- ity was a contributing factor.” Mem. in lieu of Oral Arg. 1, Sep. 14, 2026, ECF. No. 33. Case: 26-1728 Document: 35 Page: 6 Filed: 10/26/2026 6 CAMACHO v. ARMY demonstrated a low to moderate motivation to retaliate, such that the first two Carr factors weighed in favor of the agency. See S.A. 39. The third factor did not tip the scales, given that the “parties presented no evidence to address similarly situated comparators.” S.A. 38. As a result, the Board concluded that the agency met its burden. S.A. 39. Substantial evidence supports this determination, and Ms. Camacho fails to demonstrate otherwise. Her conclu- sory assertions that the Board misapplied the law and failed to consider evidence of retaliatory motive merely amount to a request for this court to reweigh evidence on appeal, which this court may not do. See Rickel v. Dep’t of the Navy, 31 F.4th 1358, 1366 (Fed. Cir. 2022). III We have considered Ms. Camacho’s other arguments and find them unpersuasive. For the foregoing reasons, we affirm. AFFIRMED COSTS No costs.