NOTE: This disposition is nonprecedential.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 Delman.

______________________ 

Decided: September 17, 2015

______________________ 

 BRUCE E. ZOELLER, Hiawatha, KS, pro se.

 JEFFREY LOWRY, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, 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 government’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 February 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 unsuccessfully 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. Zoeller’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 seeking $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 relating 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 payments. 

During the pendency of the summary judgment proceedings, 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 categories. 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 judgment 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 sufficiency 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 government 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 produce 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 noncompliance 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 government. 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 enforcement 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 discretion 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 explanation 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 government’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 wrongfully 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 discovery 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.