Opinion
2013-1627
12-11-2013
PHI APPLIED PHYSICAL SCIENCES, INC., Appellant, v. JOHN MCHUGH, SECRETARY OF THE ARMY, Appellee.
NOTE: This order is nonprecedential.
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.
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
_________________
Daniel E. O'Toole
Clerk of Court
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