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           NOTE: This order is nonprecedential.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



 2                        PHI APPLIED PHYSICAL SCIENCES   v. ARMY



     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
