Phi Applied Physical Sciences, Inc. v. John McHugh, Secretary of the Army

N OTE: This order is nonprecedential.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, L OURIE and T ARANTO, Circuit
Judges.
RADER , Chief Judge.
O R D E R
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 Document: 12 Page: 1 Filed: 12/11/2013

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PHI APPLIED PHYSICAL SCIENCES v. ARMY 2
On April 30, 2013, the Armed Services Board of Con-
tract 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,
I T I S O RDERED T HAT :
(1) The motion is granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
F OR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s26
ISSUED AS A MANDATE: December 11, 2013
Case: 13-1627 Document: 12 Page: 2 Filed: 12/11/2013

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