Phi Applied Physical Sciences v. Army

Opinion

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NOTE: This order is nonprecedential.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 Document: 12 Page: 2 Filed: 12/11/2013

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, 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