        NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                BRUCE E. ZOELLER,
                    Appellant,
                           v.
  JOHN MCHUGH, SECRETARY OF THE ARMY,
                Appellee.
              __________________________

                   2011-1167, -1168
              __________________________

   Appeals from the Armed Services Board of Contract
Appeals in no. 56578, Administrative Judge Jack Delman.
               __________________________

               Decided: December 8, 2011
              ___________________________

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

    CAMERON COHICK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for appellee. With him on the
brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and BRYANT G. SNEE,
Deputy Director. Of counsel was WILLIAM M. EDWARDS,
Deputy District Counsel, United States Department of the
Army, Corps of Engineers, Kansas City, Missouri.
ZOELLER   v. ARMY                                           2


                __________________________

  Before RADER, Chief Judge, NEWMAN and DYK, Circuit
                        Judges.
PER CURIAM.
    Appellant Bruce E. Zoeller appeals the decision of the
Armed Services Board of Contract Appeals (“Board”)
denying Zoeller’s motion for sanctions for the Army’s
alleged violation of an order compelling production of
documents. Zoeller, ASBCA No. 56578, 10-2 BCA ¶
34,549 (“Sanctions Decision”). We dismiss.
                       BACKGROUND
     On June 22, 1999, the U.S. Army Corps of Engineers
(“the Army”) leased to Zoeller three parcels of land near
Fort Leavenworth, Kansas—designated as parcels AA,
FE, and FW—to be used for specific agricultural purposes.
The lease was for a period of five hay-crop years, ending
on December 31, 2003, and could be renewed for an addi-
tional term of five years upon consent of both parties. The
lease permitted the Army to terminate it “at any time,”
provided that certain notice requirements were met. In
the event of complete or partial termination by the Army,
however, the lease provided Zoeller the right “to harvest,
gather and remove such crops as may have been planted
or grown on said premises,” or, if unable to do so, to collect
compensation for the value of the remaining crops. On
January 9, 2003, the Army issued to Barsto Construction,
Inc. (“Barsto”) a limited notice to proceed with site demo-
lition in parcel FW in connection with the construction of
a family housing project. Subsequently, on February 21,
2003, the Army officially notified Zoeller that it was
removing parcels FE and FW from the lease in their
entirety and that it did not intend to exercise its option to
renew with respect to parcel AA.
3                                           ZOELLER   v. ARMY


    Zoeller, concluding that the Army had acted improp-
erly, commenced a series of litigations challenging the
Army’s actions. First, in 2003, Zoeller filed a claim for
compensation before the Board challenging the govern-
ment’s right to partially cancel the lease. The Board held
that the Army’s decision to partially revoke was author-
ized and lawful. This court affirmed. Zoeller v. Brownlee,
113 F. App’x 390 (Fed. Cir. 2004). In our opinion we
noted that Zoeller’s claim for compensation for loss of
crops was not before the Board. Id. at 393–94.
    Next, Zoeller filed suit in the United States Court of
Federal Claims alleging that the Army’s revocation of the
lease and the destruction of his plants was a material
breach of contract and breach of warranty for which he
was entitled to damages; that the Army failed to comply
with the Uniform Relocation Assistance and Real Prop-
erty Acquisition Policies Act (“URARPAPA”), 42 U.S.C.
§ 4651; and that the Army’s actions resulted in a com-
pensable “taking” under the Fifth Amendment. Zoeller v.
United States, 65 Fed. Cl. 449, 452 (2005). The court
dismissed the action, concluding first that Zoeller was
precluded from relitigating the propriety of the partial
lease termination because it had already been litigated
before the Board and the Board’s decision was affirmed by
this court. Id. at 457. As to the damages claim, the court
held that it was without jurisdiction because Zoeller failed
to first submit a claim to the contracting officer (“CO”).
Id. at 458. The court also dismissed the URARPAPA
claim because the Act applied only to federal acquisition
of an individual’s land, and here Zoeller was not a land
owner but a tenant. Id. at 459. Finally, it dismissed the
Fifth Amendment claim because there was no “taking” of
private property, but only the partial termination of a
lease agreement, which prescribed the contract rights of
the parties upon the event of termination. Id. at 461–62.
ZOELLER   v. ARMY                                         4


    Despite these adverse judgments the dispute contin-
ued. In 2006, Zoeller submitted a claim to the CO in the
amount of $313,245.60—consisting of $163,245.60 for seed
crop damages in parcel FW for the final year of the lease
and the five-year option period and $150,000 for loss of
“root” crops that could have been dug up and used for
landscaping after the end of the option period. The claim
also asserted that the Army’s issuance of a notice to
proceed to Barsto was an “unlawful take-over” of parcel
FW, that at the time the contract was executed the Army
had withheld “superior knowledge” regarding planned use
of the FW parcel for family housing, that the Army had
acted in bad faith by not notifying him at the time of
contract regarding the new family housing to be con-
structed, and that the Army had failed to comply with
URARPAPA. The CO granted the claim for seed crop
damage for the final year of the initial lease term in the
amount of $21,224.40 but denied the other claims.
     On appeal, the Board, largely on grounds of res judi-
cata, granted partial summary judgment in favor of the
Army on the legality of the Army’s removal of parcel FW
from the lease, Zoeller’s lack of entitlement to seed crop
damages for the unexercised five-year option period, and
Zoeller’s lack of entitlement to root crop damages after the
lease expiration, and dismissed the URARPAPA claims.
Zoeller, ASBCA No. 56578,10-1 BCA ¶ 34,330. Zoeller
filed a motion for reconsideration, and the Board affirmed.
Zoeller, ASBCA No. 56578, 10-2 BCA ¶ 34,556. As de-
scribed below, the partial summary judgment decision left
open two of Zoeller’s claims.
    During the proceedings before the Board, Zoeller
sought sanctions against the Army for failure to comply
with a discovery order. Zoeller had served the Army with
a request for production of nine categories of documents,
which the government objected to on grounds of rele-
5                                          ZOELLER   v. ARMY


vance. The Board ordered production of the documents.
The Army then responded to the discovery request but
produced only one category of documents, stating that it
could not locate responsive documents in the other catego-
ries. Zoeller filed a motion for default judgment and
sanctions in the full amount of the claim for the Army’s
failure to fully comply with the discovery order. After
requiring the Army to “more clearly and specifically
address the efforts it ha[d] undertaken to comply with the
Board’s [discovery order],” the Board denied the motion
for sanctions, reasoning that Zoeller had failed to show
that the Army acted willfully to delay discovery, that the
lack of documents caused any material prejudice, undue
burden, or expense to Zoeller, or that the Army’s actions
were part of a pattern of noncompliance. Sanctions
Decision, 10-2 BCA ¶ 34,549.
    Zoeller appealed the Sanctions Decision, asserting
this court’s jurisdiction under 28 U.S.C. § 1295(a)(10).
                       DISCUSSION
    A discovery sanctions order is not appealable before
final judgment where, as here, the sanctions order may be
challenged on appeal from the final judgment. M.A.
Mortenson Co. v. United States, 877 F.2d 50, 51 (Fed. Cir.
1989). Here, there has been no final judgment. Zoeller
raised at least six issues in its certified claim to the CO.
Although these same six issues were appealed and pre-
sented before the Board, the Board’s decisions addressed
only four of those issues. Two of the CO’s determina-
tions—the denial of Zoeller’s “superior knowledge / bad
faith” claim and the quantum of damages to which Zoeller
is entitled for the loss of his seed crop on parcel FW
during the last year of the original lease term—remain
before the Board to decide. Thus, there has been no final
determination by the Board. See England v. Contel
ZOELLER   v. ARMY                                       6


Advanced Sys., 384 F.3d 1372, 1378 (Fed. Cir. 2004)
(holding that a Board’s determination is final where it is
commensurate in scope with the contracting officer’s
decision). We therefore conclude that we lack jurisdiction
over the Sanctions Decision at this time.
                         COSTS
   No costs.
