Dalia Kulowiec v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DALIA KULOWIEC,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1980
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-24-0106-I-1.
______________________
Decided: April 9, 2026
______________________
DALIA KULOWIEC, Montgomery Village, MD, pro se.
STEPHEN FUNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH.
______________________
Case: 25-1980 Document: 25 Page: 1 Filed: 04/09/2026

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KULOWIEC v. MSPB 2
Before HUGHES and STOLL, Circuit Judges, and SEEBORG,
Chief District Judge.†
PER CURIAM.
Dalia Kulowiec petitions for review of a final decision
of the Merit Systems Protection Board dismissing the ap-
peal of her removal as a police officer with the Department
of Commerce based on bad-faith noncompliance. Because
we conclude that the Board did not abuse its discretion in
applying this sanction, and because Ms. Kulowiec’s other
arguments lack merit, we affirm.
I
On August 25, 2023, Ms. Kulowiec was removed from
service as a police corporal with the National Institute of
Standards & Technology based on medical inability to per-
form the essential functions of her position. On Novem-
ber 2, 2023, Ms. Kulowiec filed an initial appeal of her
removal with the Board. She was represented in this ap-
peal by Mr. Brook L. Beesley.
On December 6, 2023, the administrative judge or-
dered a status conference for December 14, 2023, indicat-
ing that the “appellant and the representatives of record”
were to appear. S.A. 60 (emphasis added).1 However, at the
status conference, Mr. Beesley appeared without Ms. Ku-
lowiec, and he indicated that Ms. Kulowiec declined to ap-
pear.
On July 10, 2024, the administrative judge issued an-
other scheduling order, setting a status conference for
† Honorable Richard Seeborg, Chief District Judge,
United States District Court for the Northern District of
California, sitting by designation.
1 S.A. refers to the supplemental appendix attached
to the respondent’s informal brief. P.A. refers to the mate-
rial attached to the petitioner’s informal opening brief.
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KULOWIEC v. MSPB 3
August 13, 2024. Again, both “the appellant and the repre-
sentatives” were ordered to appear. S.A. 79. Both Ms. Ku-
lowiec and Mr. Beesley failed to appear without
explanation. The administrative judge issued a show cause
order, ordering both “appellant and her representative” to
explain their failure to attend or else face sanctions.
S.A. 80. Mr. Beesley responded, purportedly on behalf of
himself and Ms. Kulowiec, indicating that there was a
scheduling mix-up between Ms. Kulowiec’s case and a case
for a different client. Mr. Beesley also mentioned, for the
first time, that he “suffers from chronic long term medical
condition(s).” S.A. 86. Accordingly, he asked for an accom-
modation to be given advance “notice of any scheduling
and/or rescheduling matters.” S.A. 86–87. On August 29,
2024, the agency moved the Board to sanction Ms. Ku-
lowiec and dismiss her appeal with prejudice. As part of
this motion, the agency also provided evidence that
Mr. Beesley’s purported hearing for a different client had
in fact been continued, meaning no obstacle prevented
Mr. Beesley from attending Ms. Kulowiec’s status confer-
ence.
The administrative judge issued another scheduling or-
der on October 8, 2024, requesting Ms. Kulowiec and
Mr. Beesley appear at a status conference on October 25,
2024. This order warned Ms. Kulowiec and Mr. Beesley
that their failure to appear, absent good cause, would be
“sanction[ed] up to and including the dismissal of this ap-
peal with prejudice.” S.A. 103. Both Ms. Kulowiec and
Mr. Beesley appeared at the conference. During the pro-
ceedings, Mr. Beesley accused the administrative judge of
misrepresenting his statements, so the administrative
judge informed the parties that he would begin recording
the call for the record. Mr. Beesley objected based on his
belief that the law of California (where he was located) re-
quired that the administrative judge first obtain his con-
sent to record. The administrative judge also inquired
directly with Mr. Beesley about why Ms. Kulowiec had not
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KULOWIEC v. MSPB 4
complied with his earlier orders, but Mr. Beesley’s re-
sponses were “evasive,” only referring vaguely to Ms. Ku-
lowiec’s medical conditions. S.A. 106. Finally, as to
Mr. Beesley’s own medical conditions allegedly impacting
his ability to work, the administrative judge requested that
Mr. Beesley submit documentation corroborating his need
for advance scheduling notices. Mr. Beesley provided this
documentation on November 7, 2024.
On March 25, 2025, the administrative judge granted
the agency’s motion for sanctions. The administrative
judge found that Ms. Kulowiec’s and Mr. Beesley’s re-
peated failures to comply with orders were not excused by
good cause, and that Mr. Beesley’s behavior during the Oc-
tober 25 status conference “frustrate[d] the efficient pro-
cessing of [the] appeal based on his unprofessional,
combative, and condescending behavior.” S.A. 137–38.
Nevertheless, the administrative judge decided not to dis-
miss the appeal but instead impose the lesser sanction of
canceling Ms. Kulowiec’s scheduled hearing. The adminis-
trative judge then warned that this was Ms. Kulowiec’s
last chance, and that future noncompliance would lead to
dismissal with prejudice. A recorded close-of-record tele-
conference was then scheduled for April 29, 2025.
On April 28, 2025, the day before the scheduled confer-
ence, Ms. Kulowiec submitted notice through Mr. Beesley
that she objected to the planned recording and would not
attend. The following day, neither Ms. Kulowiec nor
Mr. Beesley appeared.
On April 30, 2025, the administrative judge issued an
initial decision dismissing Ms. Kulowiec’s appeal with prej-
udice as a sanction. The administrative judge found this
severe measure warranted because, even after being sanc-
tioned for failure to comply, Ms. Kulowiec and Mr. Beesley
refused to correct their behavior. Specifically, the adminis-
trative judge found that: (1) the dilatory timing of Ms. Ku-
lowiec’s April 28 notice of non-consent was evidence of bad
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KULOWIEC v. MSPB 5
faith, see Kulowiec v. Dep’t of Com., No. DC-0752-24-0106-
I-1, 2025 MSPB LEXIS 2406, at *18–19 (M.S.P.B. Apr. 30,
2025) (Board Decision); (2) Ms. Kulowiec’s failure to iden-
tify a basis for her objection to the recording, apart from
“dubious and unsupported claim[s]” under state wiretap-
ping statutes, similarly suggested bad faith, id. at *19–20
& n.7; and (3) Mr. Beesley’s failure to appear for the
April 29 teleconference was in bad faith, and more gener-
ally part of a pattern of “obstructive, antagonistic, and un-
professional” conduct, id. at *21–22. Neither party filed a
petition for review, and the decision became final on
June 4, 2025. Ms. Kulowiec timely appealed to this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9) and
5 U.S.C. § 7703(b)(1)(A).
II
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, 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
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c); see also Baird v. Dep’t of the Army, 517 F.3d
1345, 1349 (Fed. Cir. 2008). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as ad-
equate to support a conclusion.” Consol. Edison Co. of N.Y.
v. NLRB, 305 U.S. 197, 229 (1938).
On appeal, Ms. Kulowiec, now proceeding pro se,
makes several arguments: (1) that she was improperly de-
nied statutory hearing rights, and that the Board improp-
erly entered summary judgment against her; (2) that the
administrative judge improperly entered sanctions be-
cause she prosecuted her appeal in good faith; and (3) that
the administrative judge’s recording of her status
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KULOWIEC v. MSPB 6
conference proceedings violated law, rule, or regulation.2
We address each argument in turn.
A
Ms. Kulowiec first alleges that the Board improperly
stripped her of statutory hearing rights “through an unau-
thorized form of summary judgment disguised as sanc-
tions.” Pet. Br. 4 (quoting ECF No. 9 at 2). We disagree.
Title 5, Section 7701(a) provides that an appellant to
the Board has the right to a hearing and the right to be
represented. However, the right to a hearing can be for-
feited. For instance, 5 C.F.R. § 1201.43(b) provides that
“[i]f a party fails to prosecute or defend an appeal, the judge
may dismiss the appeal with prejudice or rule in favor of
the appellant.” And while we have noted that this is an
2 Ms. Kulowiec also argues her due process rights
were violated by the agency’s alleged failure to schedule an
oral reply. However, we may only review final decisions of
the Board, 28 U.S.C. § 1295(a)(9), and the final decision
here does not address the merits of Ms. Kulowiec’s appeal,
passing only on the propriety of sanctions. Thus, the sole
issue on appeal is whether the Board erred by dismissing
Ms. Kulowiec’s appeal as a sanction. Accord Jourdan v.
Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (“Because the dis-
trict court ultimately dismissed [the] complaint for failure
to prosecute, the substantive merits of these claims are not
now before us for review.”); see Askan v. FARO Techs., Inc.,
809 F. App’x 880, 884–85 (Fed. Cir. 2020) (merits of under-
lying claims irrelevant to review of district court’s dismis-
sal sanction under Fed. R. Civ. P. 37). For this reason, we
also do not consider Ms. Kulowiec’s argument that the ad-
ministrative judge failed to make “finding[s] on the
agency’s refusal to accommodate representative re-
strictions,” which similarly appears to run to the merits of
her appeal. Pet Br. 7.
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KULOWIEC v. MSPB 7
“extreme sanction” that “should not be imposed for a single
instance of failure to comply with a Board order,” William-
son v. M.S.P.B., 334 F.3d 1058, 1063 (Fed. Cir. 2003) (cita-
tion omitted), we have also recognized that repeated failure
to respond to Board orders may justify dismissal, Ahlberg
v. Dep’t of Health & Hum. Servs., 804 F.2d 1238, 1242–43
(Fed. Cir. 1986). The imposition of dismissal and other
sanctions falls within the discretion of the Board and may
not be reversed “unless an abuse of discretion is clear and
is harmful.” Baker v. Dep’t of Health & Hum. Servs.,
912 F.2d 1448, 1457 (Fed. Cir. 1990) (citation omitted).
Here, despite multiple warnings of the potential for
sanctions, both Ms. Kulowiec and Mr. Beesley failed twice
to appear for scheduled teleconferences. S.A. 80–81;
S.A. 149. In each instance, these failures to appear were
either entirely unexcused or justified only by conclusory
and unsupported objections. Compare S.A. 85–87
(Mr. Beesley contending that scheduling mix-up kept him
from attending conference on Ms. Kulowiec’s behalf), with
S.A. 92–94 ¶¶ 8–15 (the government demonstrating that
no such scheduling conflict existed). See also S.A. 147–48
(notice of objection, without supporting reasons, to rec-
orded teleconference). So too did Ms. Kulowiec fail to ex-
plain her own absence from the August 13, 2024,
teleconference, despite the administrative judge’s show
cause order clearly directing her and Mr. Beesley to submit
separate explanations. And prior to applying the sanction
of dismissal, the Board had already applied the lesser sanc-
tion of cancelling Ms. Kulowiec’s hearing, but even this
failed to increase Ms. Kulowiec’s compliance. Board Deci-
sion, 2025 MSPB LEXIS 2406, at *23–24. Faced with these
repeated violations of Board orders, we cannot say the ad-
ministrative judge abused his discretion in applying the
sanction of dismissal.
We also reject Ms. Kulowiec’s related argument, rely-
ing on our nonprecedential decision in Gelb v. Department
of Veterans Affairs, No. 2023-1157, 2023 WL 3493702
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KULOWIEC v. MSPB 8
(Fed. Cir. May 17, 2023), that she prosecuted her appeal in
good faith and had good cause for any omissions based on
Mr. Beesley’s representation, submission of medical ac-
commodation documents, and “diligent[ ] fil[ing]” of re-
sponses. Pet. Br. 5–6. True, in Gelb, we observed that, at
least where an order only required an “appellant” to ap-
pear, an appellant’s representative could attend the hear-
ing on the appellant’s behalf and remain compliant with
the Board’s order. See 2023 WL 3493702, at *5. Here, how-
ever, the administrative judge’s scheduling orders plainly
required attendance by both Ms. Kulowiec and Mr. Bees-
ley. S.A. 60; S.A. 79; S.A. 103. We therefore do not find
Gelb applicable. Regardless, Mr. Beesley’s conduct falls far
short of demonstrating good-faith prosecution. See, e.g.,
S.A. 85–87 (belatedly raising accommodation request after
missing August 13, 2024, scheduling conference);
S.A. 147–48 (filing cursory objection to close-of-record tele-
conference one day in advance). The Board’s finding of bad
faith, supporting its discretionary application of sanctions,
is therefore supported by substantial evidence.
Finally, we conclude that the application of this sanc-
tion, specifically authorized by regulation, was not a dis-
guised summary judgment determination. Indeed, the
administrative judge did not pass at all on the merits of
Ms. Kulowiec’s case. At least where, as here, the adminis-
trative judge focuses specifically on whether the sanctions
power is appropriate to address bad faith prosecution of an
appeal, we decline to read this power as conflicting with
case law on the Board’s inability to grant summary judg-
ment. Cf. Crispin v. Dep’t of Com., 732 F.2d 919, 922–23
(Fed. Cir. 1984) (recognizing the Board may impose sanc-
tions for failure to comply after noting Board’s inability to
grant summary judgment).
B
We next consider Ms. Kulowiec’s argument that the ad-
ministrative judge violated law, rule, or regulation by
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KULOWIEC v. MSPB 9
recording the proceedings of her status conference on Octo-
ber 25, 2024. Specifically, Ms. Kulowiec argues that federal
law and the state laws of California (again, where
Mr. Beesley was located at the time of the teleconference)
and Maryland (where she was located at the time of the
teleconference) prohibit recording private conversations
without the consent of all parties involved. Ms. Kulowiec
also argues that the administrative judge acted contrary to
the Board’s Judges’ Handbook and other Board policies by
recording.
These arguments, too, are uncompelling. First, Ms. Ku-
lowiec fails to connect the administrative judge’s purported
error in recording the proceedings to any deficiency in the
Board’s decision. See Sistek v. Dep’t of Veterans Affs.,
955 F.3d 948, 953 (Fed. Cir. 2020) (“The petitioner bears
the burden of establishing reversible error in the Board’s
final decision.” (emphasis added)). However, reading
Ms. Kulowiec’s pro se filings liberally, Harris v. Shinseki,
704 F.3d 946, 948 (Fed. Cir. 2013), it is possible that
Ms. Kulowiec intends to challenge those portions of the
Board’s final decision in which the administrative judge
considered Ms. Kulowiec’s objections to recorded proceed-
ings and found them insufficient to excuse her and
Mr. Beesley’s absence, see Board Decision, 2025 MSPB
LEXIS 2406, at *19–22.
Even if we assume this link between the challenged
conduct and the Board’s decision, we are unpersuaded. The
federal statute and state statutes to which Ms. Kulowiec
directs us do not appear to apply to proceedings before the
Board. California’s statute applies only to “confidential”
communications, and both Maryland’s statute and the fed-
eral statute refer to the wrongful “interception” of commu-
nications. See Cal. Penal Code § 632(a), (c); Md. Code Ann.,
Cts. & Jud. Proc. § 10-402(a)(1); 18 U.S.C. § 2511. None of
the statutes on their face would therefore apply when a
party voluntarily appears in an adversarial administrative
proceeding: in such circumstances, the parties must
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KULOWIEC v. MSPB 10
understand their conversations are being documented for
the record, whether by analog or electronic means. This is
not a wrongful interception of, or intrusion upon, private
communications. And Ms. Kulowiec’s arguments based on
the Board Judges’ Handbook and other Board policies sim-
ilarly fail. Even were we to read the Judges’ Handbook as
requiring categorical deference to state privacy statutes,
which we do not, the Board’s own precedential decisions
make clear that the Judges’ Handbook “is not mandatory
and failure to apply its provisions does not establish adju-
dicatory error.” Gregory v. Dep’t of the Army, 114 M.S.P.R.
607, 615–16 (2010). Nor do we find convincing Ms. Ku-
lowiec’s argument that Board policies that prohibit others
from recording Board personnel without consent were
somehow violated here by the administrative judge’s choice
to record Ms. Kulowiec’s proceedings. See Pet Br. 5 (citing
P.A. 3–4). We therefore find that Ms. Kulowiec fails to
demonstrate reversible error in the Board’s decision on this
basis.
III
We have considered Ms. Kulowiec’s other arguments
and find them unpersuasive. For these reasons, we affirm
the Board’s dismissal of Ms. Kulowiec’s appeal with preju-
dice as a sanction.
AFFIRMED
COSTS
No costs.
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