NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRUCE E. ZOELLER,
Appellant
v.
JOHN M. MCHUGH, SECRETARY OF THE ARMY,
Appellee
______________________
2015-1516
______________________
Appeal from the Armed Services Board of Contract
Appeals in No. 56578, Administrative Judge Jack Del-
man.
______________________
Decided: September 17, 2015
______________________
BRUCE E. ZOELLER, Hiawatha, KS, pro se.
JEFFREY LOWRY, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for appellee. Also represented by STEVEN J.
GILLINGHAM, ROBERT E. KIRSCHMAN, JR., BENJAMIN C.
MIZER.
______________________
2 ZOELLER v. ARMY
Before PROST, Chief Judge, DYK, and STOLL, Circuit
Judges.
PER CURIAM.
Mr. Zoeller appeals from a final judgment of the
Armed Services Board of Contract Appeals (“Board”),
contending that the Board erred in denying motions for
sanctions and default judgment in light of the govern-
ment’s alleged non-compliance with a discovery order. He
also moves under Federal Rule of Appellate Procedure
(“FRAP”) 15 for an order to compel the Board to enforce
the discovery order, and to direct the Board to enter
sanctions and default judgment against the government.
We affirm the Board’s denial of Mr. Zoeller’s motion for
default judgment and sanctions and deny Mr. Zoeller’s
motion under FRAP 15.
BACKGROUND
In June 1999, the government leased land on the Fort
Leavenworth Military Installation to Mr. Zoeller for
agricultural purposes. The term of the lease was from
May 20, 1999 to December 31, 2003, and was “revocable
at will by the Secretary [of the Army].” S.A. 22. In Feb-
ruary 2003, the government informed Mr. Zoeller that it
would remove two parcels of land from the lease, and that
the lease would not be renewed. Mr. Zoeller unsuccessful-
ly argued that the revocation was improper. See, e.g.,
Zoeller v. Brownlee, 113 F. App’x. 390, 392-93 (Fed. Cir.
2004) (affirming Board finding that the lease could be
revoked in part and that the Chief of the Military Branch
had authority to partially revoke the lease); Zoeller v.
United States, 65 Fed. Cl. 449, 455-62 (Fed. Cl. 2005)
(granting the government’s motion to dismiss Mr. Zo-
eller’s breach of contract and breach of warranty claims,
and holding that the revocation was not a taking).
In February 2008, Mr. Zoeller submitted a claim seek-
ing $313,245.60 for seed crop damages for six years (the
ZOELLER v. ARMY 3
final year of the lease plus the unexercised option period
of five years) and for the loss of plants or roots that could
be dug up for six years. The government filed a partial
summary judgment motion on Mr. Zoeller’s claims relat-
ing to superior knowledge, bad faith, and the quantum of
damages. The Board granted the government’s motion
regarding the superior knowledge and bad faith claims,
but not quantum of damages. On June 12, 2014, the
Board considered Mr. Zoeller’s quantum-of-damages claim
and awarded him compensation in the amount of
$26,496.60, with adjustments for interest and prior pay-
ments.
During the pendency of the summary judgment pro-
ceedings, Mr. Zoeller issued a request for the production
of documents. On March 17, 2009, the Board ordered the
government to produce documents relevant to nine cate-
gories. The government filed a statement of compliance,
stating that it only found responsive documents in one
category. Mr. Zoeller complained that the government’s
compliance was insufficient and requested default judg-
ment and sanctions. In response, the Board ordered the
government to “more clearly and specifically address the
efforts it ha[d] undertaken to comply with the Board’s 17
March 2009 order.” S.A. 128. Mr. Zoeller reiterated his
request for default judgment and sanctions against the
government. A month later, the Board requested that the
government submit an affidavit attesting to the sufficien-
cy of its search for the ordered documents. In response,
the government filed declarations, attesting that it had
commissioned a new search and had sent additional
documents to Mr. Zoeller. But Mr. Zoller continued to
complain that he had not received several categories of
the documents he sought in the 2009 discovery order. He
again moved for sanctions and default judgment against
the government. The government responded that it “had
searched for the subject documents but could not find
them, and that appellant’s allegations that documents
4 ZOELLER v. ARMY
were concealed and/or spoilated were unsupported and
false.” S.A. 128.
The Board denied Mr. Zoeller’s motion for sanctions
and default judgment, holding that although the govern-
ment had not initially fully complied with its order to
produce the documents, it did not act willfully or in bad
faith. The Board also found that Mr. Zoeller had not
shown he was materially prejudiced or unduly burdened
by the government’s discovery delay.
Mr. Zoeller later sought the production of a new set of
documents. Again, the government was unable to pro-
duce some of the requested documents because they did
not exist. In response to Mr. Zoeller’s motion to compel
and require to government to create the non-existing
documents, the Board held on September 21, 2012 that it
does “not have the authority to order a party to create or
construct documents under the Board’s discovery rules.”
S.A. 139. Mr. Zoeller requested reconsideration on July
15, 2014 of the Board’s September 21, 2012 discovery
order and June 12, 2014 compensation decision. The
Board denied that motion for reconsideration.
Mr. Zoeller now appeals the Board’s final judgment,
challenging the Board’s denial of his motion for sanctions
and default judgment for the government’s alleged non-
compliance with the 2009 discovery order. Mr. Zoeller
also moves under FRAP 15 for an order to compel the
Board to enforce its March 17, 2009 discovery order and to
order sanctions and default judgment against the gov-
ernment. Because Mr. Zoeller’s motion under FRAP 15
presents the same issues as his appeal, we review both
together below.
DISCUSSION
We find no abuse of discretion in the Board’s enforce-
ment of its 2009 discovery order and denial of
Mr. Zoeller’s motions for sanctions and default judgment.
ZOELLER v. ARMY 5
The Board may grant default judgment under Board
Rule 31 and sanctions under Board Rule 35 if a party fails
to comply with an order of the Board. ASBCA, RULES OF
THE ARMED SERVICES BOARD OF CONTRACT APPEALS
(2011). Both rules permit the Board to exercise its discre-
tion in granting default judgment and sanctions. See id.
Our review of Board decisions is governed by statute.
41 U.S.C. § 7107(b)(2). “Procedural matters relative to
discovery and evidentiary issues fall within the sound
discretion of the [B]oard and its officials.” Johnson Mgmt.
Grp. CFC, Inc. v. Martinez, 308 F.3d 1245, 1252 (Fed. Cir.
2002) (quoting Curtin v. Office of Pers. Mgmt., 846 F.2d
1373, 1378 (Fed. Cir. 1988)). We affirm the Board’s
rulings on discovery and sanctions unless we find the
Board abused its discretion. See SMS Data Products
Grp., Inc. v. United States, 900 F.2d 1553, 1556 (Fed. Cir.
1990); c.f. Gerritsen v. Shirai, 979 F.2d 1524, 1527-29
(Fed. Cir. 1992) (establishing review of PTAB sanctions
decisions for an abuse of discretion).
The Board did not abuse its discretion when it found
that, while the government had no reasonable explana-
tion for its year-long production delay, Mr. Zoeller failed
to show that the delay caused him material prejudice or
undue burden. Nor did the Board err in its finding that
Mr. Zoeller failed to prove that the government’s delay
was part of a larger pattern of noncompliance. The Board
was well within its discretion in accepting the govern-
ment’s declarations that some of the requested documents
did not exist. The Board thus did not err in holding that
Mr. Zoeller had not proven that the government acted
willfully or in bad faith, or that it had concealed or wrong-
fully destroyed documents. Accordingly, we hold that the
Board did not abuse its discretion when it denied
Mr. Zoeller’s request for sanctions and default judgment
and affirmed that denial on reconsideration.
6 ZOELLER v. ARMY
It is not clear whether Mr. Zoeller also challenges the
Board’s denial of his 2014 motion for reconsideration. To
the extent that he does, we affirm the Board’s decision.
The Board did not abuse its discretion when it denied
Mr. Zoeller’s motion for reconsideration of its 2012 discov-
ery decision as untimely. As the Board explained,
Mr. Zoeller’s motion improperly sought “further review of
a Board discovery order that was issued over two years
ago.” S.A. 172. Mr. Zoeller had only 30 days to move for
reconsideration of the 2012 order under Board Rule 29.
Thus, the Board’s denial of Mr. Zoeller’s motion was well
within its “sound discretion.” See Johnson Mgmt. Grp.
CFC, Inc., 308 F.3d at 1252.
CONCLUSION
We affirm the Board’s denial of Mr. Zoeller’s motions
for sanctions and default judgment and his 2014 motion
for reconsideration, and we deny Mr. Zoeller’s motion
under FRAP 15.
AFFIRMED
No costs.