NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

In Re KERRI S. KUHLMANN,

Petitioner

______________________

2024-115

______________________

On Petition for Writ of Mandamus to the Merit Systems Protection Board in No. DC-1221-17-0437-W-1.

______________________

ON PETITION

______________________

Before MOORE, Chief Judge, TARANTO and CHEN, Circuit 

Judges.

PER CURIAM.

O R D E R

Kerri S. Kuhlmann petitions this court for a writ of 

mandamus seeking review of the January 23, 2024 order of 

the Merit Systems Protection Board. Ms. Kuhlmann also 

moves to “add [the Board] as either primary or sole respondent.” ECF No. 5 at 2.

On January 17, 2018, an administrative judge issued 

an initial decision denying Ms. Kuhlmann’s individual 

right of action appeal. She petitioned the full Board for review. On January 23, 2024, the Board issued an order informing Ms. Kuhlmann that, due to a recusal, “there is no 

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2 IN RE KUHLMANN

quorum,” and thus, by operation of 5 C.F.R. § 1200.3(b),*

the “initial decision now becomes the final decision of the 

[Board].” ECF No. 2 at 41. Ms. Kuhlmann filed this petition on February 7, 2024. 

Mandamus is “reserved for extraordinary situations.” 

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 

271, 289 (1988) (citation omitted). Thus, a petitioner must

show that: (1) she has a clear and indisputable right to relief; (2) she does not have any other adequate method of 

obtaining relief; and (3) the “writ is appropriate under the 

circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 

367, 380–81 (2004) (citation omitted).

A party adversely affected by a final decision of the 

Board may seek this court’s review by filing a petition for 

review “within 60 days after the Board issues notice of the 

final order or decision of the Board.” 5 U.S.C. § 7703(b)(1). 

The petition must, among other things, identify the party 

seeking review and specify the order or part thereof to be 

reviewed. Fed. R. App. P. 15(a). Ms. Kuhlmann’s petition

meets those requirements and would be timely if treated as 

a petition for review. 

Because pursuing a petition for review provides Ms. 

Kuhlmann the ability to meaningfully challenge the 

Board’s final decision, including the findings and conclusions of the administrative judge and any challenge to the 

handling of her petition for full Board review, we conclude 

that the petition for a writ of mandamus should be construed and treated as a timely petition for review and that 

mandamus relief is not available. See Bankers Life & Cas. 

* Section 1200.3(b) provides that when “Board members are unable to decide any case by majority vote, the decision . . . under review shall be deemed the final 

decision . . . of the Board.” 

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IN RE KUHLMANN 3

Co. v. Holland, 346 U.S. 379, 383 (1953) (stating “whatever 

may be done without the writ may not be done with it”). 

Accordingly, 

 IT IS ORDERED THAT: 

(1) The petition is denied because the matter is treated 

as a timely petition for review. The Clerk of Court is directed to process the petition as such. 

(2) ECF No. 5 is denied. 

(3) The Board shall file the certified list within 40 days 

from the date the Clerk of Court dockets this matter as a 

petition for review. From the date of service of the certified 

list, Ms. Kuhlmann has 60 days to file her opening brief in 

which she may challenge any aspect of the Board’s January 

23, 2024 order as well as the administrative judge’s January 17, 2018 decision. 

February 28, 2024

 Date

FOR THE COURT

 

 

Case: 24-115 Document: 9 Page: 3 Filed: 02/28/2024