PHI APPLIED PHYSICAL SCIENCES v. ARMY , No. 13-1627 (Fed. Cir. 2013)

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Case: 13-1627 Document: 12 Page: 1 Filed: 12/11/2013 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ PHI APPLIED PHYSICAL SCIENCES, INC., Appellant, v. JOHN MCHUGH, SECRETARY OF THE ARMY, Appellee. ______________________ 2013-1627 ______________________ Appeal from the Armed Services Board of Contract Appeals in No. 56581, Administrative Judge Robert T. Peacock. ______________________ ON MOTION ______________________ Before RADER, Chief Judge, LOURIE and TARANTO, Circuit Judges. RADER, Chief Judge. ORDER The Secretary of the Army ( Secretary ) moves to dismiss this appeal as untimely. PHI Applied Physical Sciences, Inc. ( PHI ) has not responded. Case: 13-1627 2 Document: 12 Page: 2 Filed: 12/11/2013 PHI APPLIED PHYSICAL SCIENCES v. ARMY On April 30, 2013, the Armed Services Board of Contract Appeals ( ASBCA ) issued its underlying decision in PHI s case. PHI received ASBCA s decision on May 6, 2013. PHI s notice of appeal was received by this court on September 6, 2013; 123 days after PHI received the decision. A contractor must file a notice of appeal from an ASBCA decision within 120 days after receipt of the decision. See 41 U.S.C. § 7107(a)(1)(A). This filing period is mandatory and jurisdictional. See Placeway Const. Corp. v. United States, 713 F.2d 726, 728 (Fed. Cir. 1983) ( We have no authority to waive this statutorily imposed period and thus we have no jurisdiction to hear this appeal. ). Because PHI s appeal was not filed within 120 days, we must dismiss. Accordingly, IT IS ORDERED THAT: (1) The motion is granted. The appeal is dismissed. (2) Each side shall bear its own costs. FOR THE COURT /s/ Daniel E. O Toole Daniel E. O Toole Clerk of Court s26 ISSUED AS A MANDATE: December 11, 2013

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