This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellant

v.

Danny L. McPHERSON, Staff Sergeant

United States Army, Appellee

No. 21-0042

Crim. App. No. 20180214

Argued April 21, 2021—Decided August 3, 2021

Military Judges: Andrew J. Glass and James Ewing

For Appellant: Lieutenant Colonel Wayne H. Williams (argued); Colonel Steven P. Haight (on brief); Captain Thomas 

J. Darmofal.

For Appellee: Captain Alexander N. Hess (argued); Colonel 

Michael C. Friess, Lieutenant Colonel Angela D. Swilley, 

Captain Joseph A. Seaton Jr., and Captain Paul T. Shirk

(on brief).

Judge MAGGS delivered the opinion of the Court, in 

which Judge HARDY and Senior Judge STUCKY joined. 

Chief Judge OHLSON filed a dissenting opinion, in 

which Judge SPARKS joined.

_______________

Judge MAGGS delivered the opinion of the Court.

This case involves a statute of limitations that has expired

according to the plain meaning of its text. Following this plain 

meaning, the United States Army Court of Criminal Appeals 

(ACCA) dismissed a charge and six specifications of which a

court-martial had found Appellee guilty. United States v. 

McPherson, No. ARMY 20180214, 2020 CCA LEXIS 350, at 

*41, 2020 WL 5798492, at *15 (A. Ct. Crim. App. Sept. 28, 

2020) (unpublished). The Government argues that we should 

reverse the ACCA because its decision goes against Congress’s apparent intentions in enacting the statute of limitations at issue and because the decision works an undesirable 

result. To accept the Government’s argument, we would have 

to “find justification for wrenching from the words of a statute 

a meaning which literally they [do] not bear in order to escape 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

2

consequences thought to be absurd or to entail great hardship.” Crooks v. Harrelson, 282 U.S. 55, 60 (1930). This we 

cannot do. “Laws enacted with good intention,” as the Supreme Court repeatedly has recognized, “when put to the test, 

frequently, and to the surprise of the law maker himself, turn 

out to be mischievous, absurd or otherwise objectionable.” Id.;

see also Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 

(1982) (quoting this statement). But absent exceptional circumstances, which we conclude are not present here, “the 

remedy [for such laws] lies with the lawmaking authority, 

and not with the courts.” Crooks, 282 U.S. at 60. Accordingly, 

we reject the Government’s request that we disregard the 

plain meaning of the applicable statute of limitations. We 

therefore affirm the judgment of the ACCA.

I. Introduction

A military judge sitting as a general court-martial found 

Appellee guilty, contrary to his pleas, of six specifications of 

indecent acts with a child, in violation of Article 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 134 (2000); two 

specifications of aggravated sexual contact with a child, in violation of Article 120(g), UCMJ, 10 U.S.C. § 120(g) (Supp. II 

2008); and one specification of assault consummated by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 128 (2012). 

The military judge sentenced Appellee to confinement for 

twenty-eight years, forfeiture of all pay and allowances, reduction to the grade of E-1, and a dishonorable discharge. The 

convening authority approved the sentence as adjudged.

On appeal, the ACCA held that the five-year period of limitations specified in the 2016 amendments to Article 43(b)(1),

UCMJ, 10 U.S.C. § 843(b)(1), applied to the six specifications 

of indecent acts with a child alleged in Charge I. McPherson, 

2020 CCA LEXIS 350, at *3, 2020 WL 5798492, at *1. Because 

the offenses described in these specifications occurred in 2004 

and the summary court-martial convening authority

(SCMCA) did not receive the charges until 2017, the ACCA 

concluded that the five-year period of limitations had expired. 

Id., 2020 WL 5798492, at *1. The ACCA therefore set aside

the findings with respect to, and dismissed, Charge I and its 

six specifications. Id. at *41–42, 2020 WL 5798492, at *15.

The ACCA reassessed Appellee’s sentence, reducing it to fifteen years of confinement, reduction to the grade of E–1, and 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

3

a dishonorable discharge. Id., 2020 WL 5798492, at *15. The 

Judge Advocate General of the Army then certified to this 

Court the following issue: “Did the United States Army Court 

of Criminal Appeals err when it dismissed the Specifications 

in Charge I on the grounds that the statute of limitations had 

expired?” Our answer is no.

II. Background

Charge I and its six specifications alleged that Appellee 

committed indecent acts on the body of his daughter on divers 

occasions, with some of the acts occurring between May 2004

and August 2004 and others occurring between August 2004 

and December 2004. At the time, his daughter was ten years

old. The indecent acts included placing his tongue in her 

mouth, rubbing her vulva with his fingers, rubbing his penis 

against her vulva, penetrating her vulva with his finger, and 

placing her hand on his penis. The SCMCA received Charge I 

and its specifications on March 27, 2017, thirteen years after 

the alleged events occurred.

The sole issue on appeal to the ACCA was whether the 

statute of limitations had expired with respect to the six specifications alleged in Charge I. McPherson, 2020 CCA LEXIS 

350, at *2–3, 2020 WL 5798492, at *1. The ACCA determined 

that the statute of limitations applicable to the alleged offenses is the version of Article 43(b)(1), UCMJ, that is codified 

at 10 U.S.C. § 843(b)(1) (Supp. IV 2016).

1 McPherson, 2020 

 

1 The version of Article 43(b), UCMJ, that is codified at 10 

U.S.C. § 843(b) (Supp. IV 2016), provides in relevant part:

Art. 43. Statute of limitations

. . . .

(b)(1) Except as otherwise provided in this section (article), a person charged with an offense is not 

liable to be tried by court-martial if the offense was 

committed more than five years before the receipt of 

sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the 

command.

(2)(A) A person charged with having committed 

a child abuse offense against a child is liable to be 

tried by court-martial if the sworn charges and specifications are received during the life of the child or 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

4

CCA LEXIS 350, at *3, 2020 WL 5798492, at *1. This version 

[hereinafter the 2016 version of Article 43(b), UCMJ] includes 

amendments that Congress made to Article 43, UCMJ, on December 23, 2016, in § 5225 of the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114–328, 130 Stat. 

2000, 2909–10 (2016) [hereinafter NDAA 2017]. The ACCA 

determined that no earlier version of the statute of limitations applied because § 5225(f) of the NDAA 2017 provides: 

“The amendments made by [this section] shall apply to the 

prosecution of any offense committed before, on, or after the 

date of the enactment of this subsection if the applicable limitation period has not yet expired.” Id. § 5225(f), 2000 Stat. at 

2910; see McPherson, 2020 CCA LEXIS 350, at *14–15, 2020 

WL 5798492, at *6.

Under the 2016 version of Article 43(b)(1), UCMJ, the 

ACCA concluded that the applicable period of limitations for 

the specifications of indecent acts in violation of Article 134, 

UCMJ, is five years. McPherson, 2020 CCA LEXIS 350, at *3, 

2020 WL 5798492, at *1. The ACCA reached this conclusion 

because the 2016 version of Article 43(b)(1), UCMJ, establishes five years as the default period of limitations. The 

 

within ten years after the date on which the offense 

was committed, whichever provides a longer period, 

by an officer exercising summary court-martial jurisdiction with respect to that person.

(B) In subparagraph (A), the term ‘‘child abuse 

offense’’ means an act that involves abuse of a person who has not attained the age of 16 years and 

constitutes any of the following offenses:

 (i) Any offense in violation of section 920, 

920a, 920b, 920c, or 930 of this title (article 120, 

120a, 120b, 120c, or 130), unless the offense is 

covered by subsection (a).

(ii) Maiming in violation of section 928a of 

this title (article 128a).

(iii) Aggravated assault, assault consummated by a battery, or assault with intent to 

commit specified offenses in violation of section 

928 of this title (article 128).

(iv) Kidnapping in violation of section 925 of 

this title (article 125).
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

5

ACCA held that the longer period of limitations for a “child 

abuse offense” in Article 43(b)(2)(A), UCMJ, did not apply because the definition of “child abuse offense” in Article 

43(b)(2)(B), UCMJ, does not include any offenses under Article 134, UCMJ. Id. at *12–13, 2020 WL 5798492, at *5. Consequently, because more than five years had run since 2004, 

the ACCA determined that the statute of limitations had expired. Id. at *3, 2020 WL 5798492, at *1.

In reaching this result, the ACCA recognized that Congress enacted additional legislation addressing Article 43, 

UCMJ, on December 12, 2017. Id. at *13, 2020 WL 5798492, 

at *5. Section 531(n)(2) of the National Defense Authorization 

Act for Fiscal Year 2018 provided: “With respect to offenses 

committed before [January 1, 2019] subsection (b)(2)(B) of 

section 843 . . . shall be applied as in effect on December 22, 

2016.” Pub. L. No. 115-91, § 531(n)(2), 131 Stat. 1283, 1387 

(2017) [hereinafter NDAA 2018]. The version of Article 

43(b)(2)(B), UCMJ, that was in effect on December 22, 2016,

is codified at 10 U.S.C. § 843 (Supp. II 2014) [hereinafter the 

2014 version of Article 43, UCMJ]. Under the 2014 version of 

Article 43, UCMJ, the statute of limitations would not have 

expired at the time the SCMCA authority received the 

charges. The 2014 version of Article 43(b)(2), UCMJ, provided 

that the period of “child abuse offense[s]” was “the life of the 

child” and, unlike the 2016 version of Article 43(b)(2), UCMJ,

defined “child abuse offense[s]” to include “indecent acts in 

violation of section 934 of this title (article 134).” Id.

The ACCA, however, held that § 531(n)(2) could not affect 

the result of Appellee’s case because the amendment took effect only as of December 11, 2017. McPherson, 2020 CCA 

LEXIS 350, at *27–28, 2020 WL 5798492, at *10. By that 

time, the ACCA reasoned, the period of limitations under the 

2016 version of Article 43, UCMJ, had already run for Appellee. Id., 2020 WL 5798492, at *10. The ACCA held that under 

the Supreme Court’s decision in Stogner v. California, 539 

U.S. 607, 632 (2003), a law passed in 2017 could not revive a 

prosecution previously barred by the 2016 version of Article 

43(b)(1), UCMJ, without violating the constitutional prohibition against ex post facto laws. 2020 CCA LEXIS 350, *27–28, 

2020 WL 5798492, at *10. In addition, the ACCA held that 

even though Appellee had not raised the statute of limitations 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

6

as a defense at trial, the military judge made a plain error by 

not calling that defense to his attention as required by Rule 

for Court-Martial (R.C.M.) 907(b)(2)(B). Id. at *35–38, 2020 

WL 5798492, at *13–14.

III. Standard of Review

The questions of which version of the statute of limitations 

applies to this case and whether the applicable statute of limitations has run are questions of law that we review de novo. 

United States v. Lopez de Victoria, 66 M.J. 67, 73 (C.A.A.F. 

2008). Because we determine (for reasons explained below) 

that the applicable statute of limitations has expired, another 

standard of review also comes into play. In this case, as the 

ACCA recognized, Appellee did not raise the statute of limitations at trial and the military judge also did not advise Appellee that the statute of limitations provides a defense as required by R.C.M. 907(b)(2)(B). McPherson, 2020 CCA LEXIS 

350, at *35–38, 2020 WL 5798492, at *13–14. In United States 

v. Briggs, 78 M.J. 289, 295 (C.A.A.F. 2019), this Court held 

that in such circumstances, we review the failure of the military judge to provide the required advice for plain error.2 To 

establish plain error, Appellee must show “(1) error that is (2) 

clear or obvious and (3) results in material prejudice to his 

substantial rights.” United States v. Armstrong, 77 M.J. 465, 

469 (C.A.A.F. 2018) (internal quotation marks omitted) (citation omitted).

IV. Discussion

On appeal, the Government makes five arguments for reversing the ACCA’s decision that the 2016 version of Article 

43(b)(1), UCMJ, bars the indecent acts specifications in this 

 

2 We recognize that Briggs is no longer precedent because this 

Court vacated that decision following a reversal and remand by the 

Supreme Court. United States v. Briggs, 81 M.J. 59 (C.A.A.F. 2021) 

(decision upon remand from United States v. Briggs, 141 S. Ct. 467 

(2020)). However, because the Supreme Court’s decision did not 

concern the standard of review, we continue to believe that this 

Court’s reasoning in Briggs concerning the standard of review was 

correct. Both parties also agree on this point. Accordingly, we will 

apply the plain error standard in this case.
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

7

case. We consider all these arguments but ultimately determine that they lack merit and that the ACCA correctly decided this case.

A. Applicable Version of Article 43, UCMJ

The Government first contends that the 2016 version of 

Article 43, UCMJ, does not apply to the indecent acts specifications in this case. Relying on Toussie v. United States, 397 

U.S. 112, 115 (1970), and other precedents, the Government 

argues that an accused is generally subject to the statute of 

limitations in effect at the time of the offense. Accordingly, 

the Government asserts that the version of Article 43, UCMJ, 

that was in force in 2004 is the applicable statute of limitations for the indecent acts specifications. Under the 2004 version of Article 43, UCMJ, a court-martial can try a “child 

abuse offense” so long as “the sworn charges and specifications are received before the child attains the age of 25 years.”

10 U.S.C. § 843(b)(2)(A) (Supp. III 2003). The 2004 version of 

Article 43(b)(2)(B), UCMJ—unlike the 2016 version—defines 

the term “child abuse offense” to include “an act that involves 

sexual or physical abuse of a person who has not attained the 

age of 16 years and constitutes . . . indecent acts or liberties 

with a child in violation of section 934 of this title (article 

134).” Id. § 843(b)(2)(B)(v). Therefore, if the 2004 version of 

Article 43, UCMJ, were applicable to this case, the period of 

limitations would not have run for the indecent acts specifications because the named victim was only twenty-three

years old when the SCMCA received the charges in 2017.

We cannot accept the Government’s argument. As the 

ACCA correctly reasoned, the 2016 version of Article 43(b), 

UCMJ, applies in this case because § 5225(f) of the NDAA 

2017 specifically provides that the amendments to Article 43, 

UCMJ, “shall apply to the prosecution of any offense 

committed before . . . the date of the enactment of this 

subsection if the applicable limitation period has not yet 

expired.” § 5225(f), 130 Stat. at 2910 (emphasis added). The 

language “ ‘before, on, or after’ the statute’s enactment date” 

“indicate[s] unambiguously [Congress’s] intention to apply 

specific provisions retroactively.” I.N.S. v. St. Cyr, 533 U.S. 

289, 318–19 (2001) (emphasis added). Accordingly, this 

specific statutory provision overcomes the presumption,

described in Toussie, that the statute of limitations in effect 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

8

at the time of the offense controls. In Toussie, the Supreme 

Court recognized that “questions of limitations are 

fundamentally matters of legislative . . . decision” and that a 

statute of limitations may provide for a different result from 

the general rule. 397 U.S. at 121.

B. The Effect of the 2016 Amendments

The Government next argues that the amendments that 

§ 5225 of the NDAA 2017 made to the definition of “child 

abuse offense” in Article 43(b)(2)(B), UCMJ, were nonsubstantive and therefore did not retroactively shorten the 

period of limitations for the specifications of indecent acts in 

this case. The Government asserts that Congress revised the 

list merely to reflect numerous changes to the names, 

substance, and numbering of several punitive articles. The 

Government accordingly contends that the “conforming 

amendments described in Section 5225(d) only [were] meant 

to realign Article 43, UCMJ, with the structure and content 

of the punitive articles of the UCMJ as amended . . . going 

forward.” In support of this argument, the Government 

emphasizes that Congress described the amendments in

§ 5225(d) of NDAA 2017 as “CONFORMING 

AMENDMENTS.” § 5225(d), 130 Stat. at 2909–10. The 

Government also asserts that Congress had no conceivable

reason to shorten the period of limitations for the offense of 

indecent acts with a child in violation of Article 134, UCMJ.

We disagree with the Government’s argument because it 

conflicts with the plain language of the 2016 version of Article 

43(b)(2)(B), UCMJ. As described above, the definition of “child 

abuse offense” in this provision does not include offenses under Article 134, UCMJ. And although § 5225(d) of the NDAA

2017 labeled the changes that it made to Article 43(b)(2)(B), 

UCMJ, as conforming amendments, the Supreme Court has 

made clear that “the heading of a section cannot limit the 

plain meaning of the text.” Brotherhood of R.R. Trainmen v. 

Baltimore & O.R. Co., 331 U.S. 519, 529 (1947); see also Asociacion De Empleados Del Area Canalera v. Panama Canal 

Comm’n, 329 F.3d 1235, 1240 n.3 (11th Cir. 2003) (concluding 

that “the . . . generalization that technical and conforming 

amendments never make substantive changes in the law is 

simply unwarranted” after reviewing applicable Supreme 

Court precedent). 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

9

In reaching this conclusion, we see no reason to doubt the 

Government’s theory about what Congress was attempting to 

accomplish in revising the definition of “child abuse offense”

in Article 43(b)(2)(B), UCMJ. As the Government argues, the 

NDAA 2017 made changes to various punitive articles, and 

Congress needed to amend the definition of “child abuse offense” to take account of these changes. But in listing new 

offenses in the definition of “child abuse offense,” Congress

may not have realized the importance of continuing to include

offenses under Article 134, UCMJ, so that the definition of 

“child abuse offense” would continue to apply to indecent acts

committed under the previous statutory scheme. If that is 

what happened, then Congress made a substantive oversight 

in drafting the statute. We can recognize that this kind of mistake in statutory drafting occurred, but we cannot take upon 

ourselves the task of rewriting Article 43(b)(2)(B), UCMJ, to 

make the definition of “child abuse offense” more inclusive.

See Logan v. United States, 552 U.S. 23, 35 n.6 (2007) 

(“[E]nlargement of [a statute] by [a] court, so that what was 

omitted, presumably by inadvertence, may be included within 

its scope . . . transcends the judicial function.” (alterations after first set of brackets in original) (internal quotation marks 

omitted) (citation omitted)). As the Supreme Court has explained, an “unintentional drafting gap” is insufficient to warrant judicial correction; correction is the province of Congress 

in cases where an admittedly “anomalous” result “may seem 

odd, but . . . is not absurd.” Exxon Mobil Corp. v. Allapattah 

Servs., Inc., 545 U.S. 546, 565–66 (2005) (internal quotation 

marks omitted) (citation omitted); see also Crooks, 282 U.S. at

60 (explaining that when a legislature makes a substantive 

error concerning the actual effect of a new law, “the remedy 

lies with the lawmaking authority, and not with the courts”).

In a lengthy footnote in its brief, the Government floats an 

alternative argument concerning the applicability of the 2016 

version of Article 43, UCMJ. The Government asserts that 

“[a]n argument can be made that [the NDAA 2017] was not in 

effect during the pendency of Appellee’s trial.” To support this 

argument, the Government cites § 531(p) of the NDAA 2018, 

which states: “The amendments made by this section shall 

take effect immediately after the amendments made [to the 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

10

UCMJ in the NDAA 2017] take effect as provided for in section 5542 of th[e NDAA 2017].” § 531(p), 131 Stat. at 1388.

The Government asserts: “Accordingly, it can be said that 

none of the provisions [in the NDAA 2017] took effect until 

January 1, 2019,” the date that the President chose as the 

effective date for the NDAA 2017. See Exec. Order No. 13,825, 

83 Fed. Reg. 9889, 9889–91 (Mar. 1, 2018).

We disagree. Although the drafters of § 531(p) of the 

NDAA 2018 may have believed that all the changes to the 

UCMJ in the NDAA 2017 would go into effect on a future date 

to be specified by the President, such a belief was incorrect.

Section § 5542(a) of the NDAA 2017 provides: “Except as otherwise provided . . . the amendments made by this division 

shall take effect on the date designated by the President.” 

§ 5542(a), 130 Stat. at 2967 (emphasis added). Section 

5542(a) thus contemplated exceptions, and § 5225(f) provided

one such exception. Section 5225(f) made the amendments to 

Article 43(b)(2)(B) applicable “to the prosecution of any offense committed before, on, or after the date of the enactment

of this subsection.” (Emphasis added.) The date of enactment 

was December 23, 2016, and on that date the 2016 version of 

Article 43, UCMJ, barred prosecutions of the specifications at 

issue in this case.

C. Meaning of “Constitutes”

The Government argues in the alternative that, even if the 

2016 version of Article 43, UCMJ, applies to this case, the 

specifications at issue fall within the definition of “child abuse 

offense” in the 2016 version of Article 43(b)(2)(B), UCMJ. The 

2016 version of Article 43(b)(2)(B), UCMJ, states in relevant 

part:

[T]he term ‘‘child abuse offense’’ means an act that 

involves abuse of a person who has not attained the 

age of 16 years and constitutes any of the following 

offenses:

(i) Any offense in violation of section 920, 

920a, 920b, 920c, or 930 of this title (article 120, 

120a, 120b, 120c, or 130), unless the offense is 

covered by subsection (a).

10 U.S.C. § 843(b)(2)(B)(i) (Supp. IV 2016) (emphasis added). 

The Government acknowledges that Article 43(b)(2)(B), 
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Opinion of the Court

11

UCMJ, does not include Article 134, UCMJ, in the list of covered offenses, but argues that this omission does not matter.

The Government asserts that “Congress deliberately used the 

phrase, ‘and constitutes any of the following offenses’ instead

of ‘and charged under any of the following provisions.’ ” The 

Government contends that the indecent acts in the specifications at issue “constitute” child abuse offenses because, if 

committed today, they could be charged as sexual abuse of a 

child under Article 120b, UCMJ, 10 U.S.C. § 920b (2018), 

which is one of the offenses listed in Article 43(b)(2)(B), 

UCMJ.

We disagree with this interpretation of the 2016 version 

of Article 43(b)(2)(B), UCMJ. What we believe is most significant is that the statute uses the words “constitutes . . . any 

offense in violation of” the articles in the enumerated list instead of the words “would constitute” a violation of the articles in the enumerated list. Article 43(b)(2)(B)(i), UCMJ (emphasis added). The acts described in the specifications likely

“would constitute” offenses under Article 120b, UCMJ, if that 

Article had existed in 2004 and if the charge sheet had informed Appellee that he was accused of violating that article.

But because a person cannot violate a statute that did not exist at the time of his acts, Appellee’s acts cannot constitute 

violations of Article 120b, UCMJ, an article that did not exist 

in 2004. And the charge sheet accused Appellee of violating 

Article 134, UCMJ, an entirely different article. The acts alleged in the specifications are therefore not acts that constitute “child abuse offense[s]” within Congress’s definition in 

the 2016 version of Article 43(b)(2)(B), UCMJ.

D. Absurdity

The Government further argues that even if the 2016 

version of Article 43(b), UCMJ, applies (as we have 

concluded), and even if the specifications do not allege child 

abuse offenses as defined in Article 43(b)(2)(B), UCMJ (as we 

also have concluded), we cannot enforce the article as written 

because the result would be absurd. We agree with the 

Government that in very limited circumstances, a court can 

refuse to apply the literal text of a statute when doing so 

would produce an absurd result. The Supreme Court has said

that “a departure from the letter of the law” may be justified 

to avoid an absurd result if “the absurdity . . . is so gross as to 
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Opinion of the Court

12

shock the general moral or common sense.” Crooks, 282 U.S. 

at 60. We nonetheless do not think that the absurdity doctrine 

applies here.

A litigant who asks the court to apply the absurdity doctrine should explain in detail why following the plain meaning of a statute would produce absurd results. In its brief in 

this case, the Government has endeavored to meet this requirement with four distinct arguments. Upon inspection, 

however, Supreme Court precedent establishes that each of 

the Government’s arguments is flawed.

First, the Government argues that the ACCA’s interpretation of Article 43, UCMJ, is absurd because it “unwinds

years of Congressional action focused on bringing those who 

molest children to justice.” If by this statement the Government means that it is absurd for a statute of limitations to 

bar prosecution of a person who committed a heinous crime, 

we cannot accept this argument. All statutes of limitations 

prevent some perpetrators from being brought to justice. See

Pendergast v. United States, 317 U.S. 412, 418 (1943) (“Every 

statute of limitations, of course, may permit a rogue to escape.”). Statutes of limitations balance the need for enforcing 

laws on the merits against the need for repose and concerns 

about the staleness of evidence. See Hardin v. Straub, 490 

U.S. 536, 542 n.10 (1989) (explaining that “the interest in 

prompt resolution of disputes is vindicated by all statutes of 

limitations and always must be balanced against the countervailing interest in allowing valid claims to be determined on 

their merits”). Accordingly, the mere fact that applying the 

plain meaning of the 2016 version of Article 43, UCMJ, prevents the prosecution of Appellee for the egregious offenses of 

which he is accused does not implicate the absurdity doctrine.

Second, the Government asserts that “[t]o the extent the 

legislation can be read to plainly subject Appellee’s crime to a 

mere five-year limitation period, that result is bizarre and 

shocking to morals and common sense and should be 

avoided.” If by this statement the Government means that the 

shortness of a five-year period of limitations for the offense of 

indecent acts against a child is inherently absurd, we also 

cannot accept this contention. A party’s argument that the 

court should reject “a literal reading” of a statute “because it 

produces absurd results” fails if “Congress could rationally 
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Opinion of the Court

13

have made such a” reading the law. Int’l Primate Prot. League 

v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 84–85 

(1991) (emphasis added); see also Hallstrom v. Tillamook Cty., 

493 U.S. 20, 29–31 (1989) (a result is not “absurd or futile” if 

“it is not irrational” (internal quotation marks omitted) 

(citation omitted)). The Supreme Court reaffirmed this 

standard and made clear in two recent precedents that courts 

should not reject the plain meaning of a statute if “[a] rational 

Congress” could have intended that meaning. Niz-Chavez v. 

Garland, 141 S. Ct. 1474, 1484 (2021) (reasoning that “[a] 

rational Congress easily could have thought” the statute 

meant what the Court interpreted it to mean); BP P.L.C. v. 

Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1542 

(2021) (reasoning that “a rational Congress could have 

thought that [certain] considerations” supported the “clear 

statutory directive”).

Accordingly, the question for absurdity purposes is not 

whether the 114th Congress in fact intended the five-year period of limitations when it enacted § 5225 of the NDAA 2017, 

but instead whether a Congress could have done so. In this 

case, we know that a rational Congress could have intended 

to enact a five-year period of limitations for Article 134, 

UCMJ, offenses because the 99th Congress did exactly that

thirty-five years ago. In 1986, Congress rewrote Article 

43(b)(1) to establish a general five-year period of limitations. 

National Defense Authorization Act for Fiscal Year 1987, 

Pub. L. No. 99-661, § 805(a), (b), 100 Stat. 3816, 3908 (1986) 

(codified at 10 U.S.C. § 843 (1988)). This five-year period remained in effect until 2003, when Congress for the first time 

created a longer period of limitations for child abuse offenses.

National Defense Authorization Act for Fiscal Year 2004, 

Pub. L. No. 108-136, § 551, 117 Stat. 1392, 1481 (2003) (codified at 10 U.S.C. § 843(b)(2) (Supp. III 2003)). Between 1986 

and 2003, this Court could not have properly held the fiveyear period of limitations to be inherently absurd. We therefore cannot properly hold that it is inherently absurd now.

In Logan, the Supreme Court used precisely this reasoning to hold that the absurdity doctrine did not apply. 552 U.S. 

at 36–37. In that case, the petitioner argued that a literal 

reading of a criminal statute would yield the absurd result 

that “less serious offenders will be subject to [the statute’s] 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

14

enhanced penalties while more serious offenders in the same 

State . . . may escape heightened punishment.” Id. at 32. Echoing its many prior pronouncements on the subject, the Supreme Court explained: “Statutory terms . . . may be interpreted against their literal meaning where the words could 

not conceivably have been intended to apply to the case at 

hand.” Id. at 36 (emphasis added) (internal quotation marks 

omitted) (citations omitted). The Court then reasoned that 

the literal meaning could conceivably have been intended to 

apply to that case because a different Congress intended the 

same result. Id. at 36–37 (holding that “it can hardly be maintained that Congress could not have meant what it said” because “[i]t is more than ‘conceivable’ that the Legislature, albeit an earlier one, meant to do the same”) (citation omitted).

Third, the Government asserts that “[a] conclusion that 

Congress increased the period of limitations for child abuse 

offenses, while simultaneously and drastically shortening the 

limitations period for the same malfeasance, would be absurd.” We agree that internal inconsistency in legislation may 

be a ground for applying the absurdity doctrine. See United 

States v. Turkette, 452 U.S. 576, 580 (1981) (explaining that 

“absurd results are to be avoided and internal inconsistencies 

in the statute must be dealt with”). We also agree that, while 

eliminating offenses under Article 134, UCMJ, from the definition of “child abuse offense,” § 5225 of the NDAA 2017 simultaneously increased the statute of limitations for child 

abuse offenses in one limited way. Under the 2016 version of 

Article 43(b)(2)(A), UCMJ, the time for receiving charges for 

child abuse offenses is any time “during the life of the child or 

within ten years” after the offense. (Emphasis added.) In the 

2014 version of Article 43(b)(2)(A), UCMJ, the period was any 

time “during the life of the child or within five years” after the 

offense. 10 U.S.C. § 843(b)(2)(A) (Supp. II 2014) (emphasis 

added). But we do not agree that § 5225 of the NDAA in this 

way created an inconsistency. On the contrary, one change 

affected the length of the statute of limitations while another 

change affected the range of offenses covered by the statute 

of limitations. These changes are not in conflict because a 

court can enforce the plain meaning of each of them exactly 

as they are written. See Turkette, 452 U.S. at 585 (applying 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

15

the statute as written after determining that “[t]here is no 

inconsistency or anomaly”).

Finally, quoting Crooks, 282 U.S. at 60, the Government 

argues that the ACCA’s interpretation is absurd because 

“both the statute and legislative history contain sufficient evidence to ‘make plain the intent of Congress that the letter of 

the statute is not to prevail.’ ” The Government argues that 

starting in 2003, Congress repeatedly passed laws expanding 

the period of limitations for child abuse offenses. Against this 

background, the Government contends, reading the amendments made by § 5225 of the NDAA 2017 to shorten the period limitations would be absurd. We disagree with this reasoning. The absurdity doctrine focuses on the inherent

absurdity of the results of interpreting statutes according to 

their plain meaning. See, e.g., United States v. X-Citement 

Video, 513 U.S. 64, 69 (1994) (disapproving interpreting statutes in a way that “would produce results that were not 

merely odd, but positively absurd”). What the Government is 

arguing here is that the likely legislative purpose should prevail over the plain meaning of a statute, even if the results of 

the plain meaning are not inherently absurd. The Supreme 

Court has repeatedly rejected this method of interpreting 

statutes. “[I]t is ultimately the provisions of our laws rather 

than the principal concerns of our legislators by which we are 

governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 

U.S. 75, 79 (1998).

In addition to the weakness of the Government’s arguments, at least three other considerations prevent us from applying the absurdity doctrine in this case. First, we agree with 

Appellee’s argument that the Government’s position conflicts 

with the doctrine of repose. Under the doctrine of repose,

“criminal statutes of limitation are to be liberally interpreted 

in favor of repose.” United States v. Marion, 404 U.S. 307, 322

n.14 (1971); see also Lopez de Victoria, 66 M.J. at 74 (applying 

the doctrine of repose to Article 43, UCMJ). Given that they 

are to be “liberally interpreted in favor of repose,” statutes of 

limitations “ought not be extended by construction to embrace 

[crimes] not so denominated,” as the Government counsels 

here. United States v. Scharton, 285 U.S. 518, 522 (1932). If 

courts must liberally construe ambiguous criminal statutes of 

limitations in favor of repose, we do not understand how it 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

16

could be absurd to construe them according to their plain text, 

when the plain text is also in favor of repose.3

Another consideration weighing against the Government’s 

absurdity argument is that the Government is essentially 

asking an Article I court to disregard the plain meaning of the 

2016 version of Article 43, UCMJ, to achieve a result that the 

Ex Post Facto Clause prevents Congress from accomplishing

directly. As described above, Congress recognized the problem 

with the 2016 version of Article 43, UCMJ, and tried to correct it with § 531(n)(2) of the NDAA 2018. The ACCA properly 

concluded that § 531(n)(2) could not revive an expired period 

of limitations because to do so would be an unconstitutional

violation of the Ex Post Facto Clause under Stogner. The Government has not cited any precedent suggesting that we can 

employ the absurdity doctrine to circumvent this bedrock constitutional limitation.

And a final consideration is that if this Court were to conclude that the plain meaning of the 2016 version of Article 43, 

UCMJ, is absurd, we would have to find a non-absurd and 

textually justified alternative reading of the provision. The 

Government has not presented us with anything of the kind.

Its arguments about the meaning of the words “constitute” 

and the effective date of § 5225(a) do not suffice as we have 

explained above. And in any case, courts are not empowered 

to “repair such a congressional oversight or mistake” because, 

as noted above, “enlargement of [a statute] by [a] court, so 

that what was omitted, presumably by inadvertence, may be

included within its scope . . . transcends the judicial function.” 

 

3 One of the judges at the ACCA relied on the rule of lenity in 

ruling for Appellee. McPherson, 2020 CCA LEXIS 350, at *44, 2020 

WL 5798492, at *16 (Salussolia, J., concurring in the result). Under 

the rule of lenity, “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. United States, 

401 U.S. 808, 812 (1971). We doubt that the rule of lenity applies to 

the interpretation of statutes of limitations. But we agree that interpreting a statute of limitations contrary to its plain meaning so 

that it disadvantages the accused certainly seems to contradict the 

general thrust of the rule. See United States v. Santos, 553 U.S. 507, 

514, (2008) (explaining that one purpose of the rule of lenity is to 

“place[] the weight of inertia upon the party that can best induce 

Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead”).
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

17

Logan, 552 U.S. at 35 n.6 (alterations in original) (internal 

quotation marks omitted) (citation omitted). For all these reasons, we reject the Government’s absurdity arguments.

E. Plain Error

Finally, the Government argues that Appellee cannot prevail under the plain error standard of review. As discussed 

above, to establish plain error, Appellee must show “(1) error 

that is (2) clear or obvious and (3) results in material prejudice to his substantial rights.” Armstrong, 77 M.J. at 469 (internal quotation marks omitted) (citation omitted).

Here we have found error. The statute of limitations 

barred prosecution of the six specifications of Charge I and 

the military judge did not inform Appellee that he had a defense as required by R.C.M. 907(b). The error is prejudicial 

because if the military judge had informed Appellee about the 

period of limitations, Appellee surely would have asserted the 

period of limitations as a defense. The key question is 

whether the error is clear and obvious. The Government asserts that we cannot find that the running of the statute of 

limitations is clear and obvious given all the steps required to 

reach the ACCA’s judgment. We reject this assertion. The 

2016 version of Article 43(b), UCMJ, clearly applied to this 

case because § 5225(f) plainly said that it did. Article 43(b)(1), 

UCMJ, clearly set a five-year period of limitations because 

the longer period in Article 43(b)(1)(B), UCMJ, plainly did not 

apply to offenses under Article 134, UCMJ. The only substantial disagreement was about whether courts should reject this 

plain meaning based on the absurdity doctrine. And as explained above, the Government’s arguments for applying the 

absurdity doctrine conflicts with numerous Supreme Court 

precedents.

V. Conclusion

We recognize that the result of applying the law as written 

by Congress requires dismissal of a charge and six specifications accusing Appellee of particularly egregious offenses. But 

the question before this Court is not whether Appellee ought

to be triable for these offenses, but only whether he can be 

tried for them. In this case, for the reasons explained, the period of limitations that Congress established in the 2016 version of Article 43, UCMJ, 10 U.S.C. § 843 (Supp. IV 2016), has 
United States v. McPherson, No. 21-0042/AR

Opinion of the Court

18

expired. The certified question is answered in the negative.

The judgment of the United States Army Court of Criminal 

Appeals is affirmed.
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, with whom Judge SPARKS joins,

dissenting.

The majority concludes that the National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017)1 amended Article 43 of the Uniform Code of Military Justice (UCMJ) in such 

a manner that Appellee’s convictions for indecent acts with a 

child must now be vacated because his offenses were subject 

to a five-year statute of limitations rather than to the significantly longer statute of limitations applicable to child abuse 

offenses. They base this conclusion on the fact that the revised 

version of Article 43, UCMJ, did not explicitly list indecent 

acts with a child as one of the offenses constituting a child 

abuse offense. NDAA 2017, § 5225(d). I concede that the majority’s literal reading of the statute is not without merit. After all, as Justice Kagan famously declared: “We’re all textualists now.”

2 However, I believe the majority’s approach to 

this issue regrettably ignores long-standing Supreme Court 

precedent that, in rare and exceptional circumstances, a literal reading of a statute is not mandated when it is indisputably clear that Congress never intended that literal reading, 

and such a reading is so absurd and would lead to such an 

unjust result as to offend all moral or common sense. 

I believe it is obvious that the language contained in 

NDAA 2017 was a product of poor draftsmanship in the 

course of a complicated series of revisions to Article 43 and 

was in no way reflective of an intent by Congress to dramatically reduce the statute of limitations for the offense of indecent acts with a child. I note that over many years Congress 

consistently increased rather than decreased the statute of 

 

1 Pub. L. 114-328, § 5225, 130 Stat. 2000, 2909 (2016).

2 Harvard Law School, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes, YouTube (Nov. 25, 2017), 

https://www.youtube.com/watch?v=dpEtszFT0Tg&t=203s, at 8:28. 

Justice Kagan’s Scalia Lecture took place on Nov. 17, 2015, and 

Harvard Law School subsequently posted a video recording of the 

event to its YouTube channel. In Scalia Lecture, Kagan Discusses 

Statutory Interpretation, Harvard Law Today (Nov. 25, 2015, 

http://today.law.harvard.edu/in-scalia-lecture-kagan-discussesstatutory-interpretation.
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

2

limitations for such abhorrent crimes and, during the legislative process involving NDAA 2017, there was no public indication whatsoever that even a single member of Congress 

sought to drastically alter this trajectory. Further, I am convinced that the majority’s restrictive, literal interpretation of 

the statute leads to an absurd and unjust result that offends 

all moral and common sense because not only will Appellee’s 

convictions for repeatedly sexually abusing his ten-year-old 

daughter now be vacated,

3 but in all other similarly situated 

pre-2017 cases where a servicemember committed indecent 

acts with a child and the victim did not report the criminal 

conduct within five years, military prosecutions will now need 

to be halted or court-martial convictions will now need to be 

vacated. See United States v. Adams, 80 M.J. 461 (C.A.A.F. 

2020) (order granting review). And lamentably, there is nothing that Congress or the President can do to rectify this 

sweeping retroactive effect in pre-2017 cases.

Contrary to the majority, I would hold that the Government prosecuted Appellee in a timely manner and that the 

revisions made to Article 43 by NDAA 2017 do not compel this 

Court to vacate Appellee’s convictions. Therefore, I would affirm Appellee’s convictions on the six specifications of indecent acts with a child which are at issue here. Because the 

majority holds otherwise, I respectfully dissent. 

I. History of Article 43, UCMJ

In order to understand Article 43, UCMJ, as it currently 

exists, I find it instructive to survey the amendments Congress made to it over the years. 

 

3 As recounted by the United States Army Court of Criminal 

Appeals, between May and August 2004 at the family home at Fort 

Campbell, Kentucky, Appellee “placed his tongue inside [the child 

victim’s] mouth while kissing her, rubbed her vulva with his fingers, placed her hand on his penis, and rubbed his penis against her 

vulva, all with the intent to gratify his sexual desires.” United 

States v. McPherson, No. ARMY 20180214, 2020 CCA LEXIS 350, 

at *4, 2020 WL 5798492, at *2 (A. Ct. Crim. App. Sept. 28, 2020).

Similarly, between August and December 2004 at the home of the 

victim’s grandmother in Illinois, Appellee, “[o]n multiple occasions[,] . . . penetrated [the victim’s] vulva with his finger and 

placed her hand on his penis.” Id.
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

3

In 1986, Congress amended Article 43 by lengthening the 

statute of limitations applicable to most UCMJ offenses. National Defense Authorization Act for Fiscal Year 1987 (NDAA 

1987), Pub. L. No. 99-661, § 805, 100 Stat. 3816, 3908 (1986); 

see generally Act of Aug. 10, 1956, ch. 1041, Pub. L. No. 84-

1028, § 843, 70A Stat. 51. Specifically, this amendment expanded the statute of limitations from three years to five 

years for offenses committed on or after the enactment date 

of the statute. NDAA 1987, § 805(b)(1); compare 10 U.S.C. 

§ 843 (1988), with 10 U.S.C. § 843 (1982). The only exceptions 

to this five-year window were for absence without leave in 

time of war, missing movement in time of war, and any offense punishable by death, all of which “may be tried and punished at any time without limitation.” NDAA 1987, § 805(a). 

In 2003, Congress again amended Article 43, this time by 

increasing the statute of limitations for “child abuse offense[s]” to the victim’s twenty-fifth birthday. NDAA 2004, 

§ 551. Congress defined “child abuse offense[s]” in part by 

providing an enumerated list of offenses, as identified by the 

section of the statute and article number. NDAA 2004, 

§ 551(b)(2)(A). This list specifically included the offense of “indecent acts or liberties with a child in violation of section 934 

of this title (article 134)” as a “child abuse offense.” NDAA 

2004, § 551(b)(2)(B)(v).

In 2006, Congress amended the statute yet again. National Defense Authorization Act for Fiscal Year 2006 (NDAA 

2006), Pub. L. No. 109-163, § 553, 119 Stat. 3136, 3264 (2006). 

It increased the statute of limitations for child abuse offenses 

to “the life of the child or within five years after the date on 

which the offense was committed [whichever is longer].” 

NDAA 2006, § 553(b)(1). Indecent acts or liberties with a child 

continued to be listed as a child abuse offense. NDAA 2006, 

§ 553(b)(2)(B)(v).

In 2012, Congress made additional amendments by 

changing the statute sections and the articles listed in Article 

43 (b)(2), UCMJ, so that they would comport with changes it 

made elsewhere in the code. National Defense Authorization 

Act for Fiscal Year 2012 (NDAA 2012), Pub. L. No. 112-81, 

§ 541(d)(1), 125 Stat. 1298, 1410 (2011). In the course of doing 

so, Congress added Articles 120a, 120b, and 120c, UCMJ, to 

the list of child abuse offenses. Id. 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

4

In 2013, Congress amended the statute once again by adding sexual assault and sexual assault of a child to the list of 

offenses that could be tried without limitation. National Defense Authorization Act for Fiscal Year 2014 (NDAA 2014), 

§ 1703(a), Pub. L. No. 113-66, § 1703, 127 Stat. 672, 958 

(2013). Therefore, until the time of the next amendments in 

2017, Article 43(b)(2)(B)(i-v) read as follows: 

(B) In subparagraph (A), the term ‘child abuse offense’ means an act that involves abuse of a person 

who has not attained the age of 16 years and constitutes any of the following offenses: 

(i) Any offense in violation of section 920, 920a, 

920b, or 920c of this title (article 120, 120a, 120b, 

or 120c), unless the offense is covered by subsection (a). 

(ii) Maiming in violation of section 924 of this title (article 124). 

(iii) Forcible sodomy in violation of section 925 of 

this title (article 125). 

(iv) Aggravated assault or assault consummated 

by a battery in violation of section 928 of this title (article 128). 

(v) Kidnaping, assault with intent to commit 

murder, voluntary manslaughter, rape, or forcible sodomy, or indecent acts in violation of section 934 of this title (article 134).

(Emphasis added.)

Then, in 2016, Congress amended Article 43, UCMJ, once 

more, this time through amendments contained in NDAA 

2017. These amendments became effective on December 23, 

2016. Congress eliminated clauses (i) through (v) of subsection (b)(2)(B) and replaced them with new language. NDAA 

2017, § 5225(d). The new sections read as follows: 

(B) In subparagraph (A), the term ‘child abuse 

offense’ means an act that involves abuse of a 

person who has not attained the age of 16 years 

and constitutes any of the following offenses: 

(i) Any offense in violation of section 920, 920a, 

920b, 920c, or 930 of this title (article 120, 120a, 

120b, 120c, or 130), unless the offense is covered 

by subsection (a). 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

5

(ii) Maiming in violation of section 928a of this 

title (article 128a).

(iii) Aggravated assault, assault consummated 

by a battery, or assault with intent to commit 

specified offenses in violation of section 928 of 

this title (article 128). 

(iv) Kidnapping in violation of section 925 of this 

title (article 125). 

Id.

As can be seen, the statute no longer specifically listed indecent acts with a child in violation of Article 134, UCMJ, as 

a child abuse offense. Further, the statute stated that its provisions “shall apply to the prosecution of any offense committed before, on, or after the date of the enactment of [§ 5225] if 

the applicable limitation period has not yet expired.” NDAA 

2017, § 5225(f) (emphasis added). In other words, Congress 

made these amendments retroactive. 

II. Analysis

Recently in United States v. Briggs—which notably was 

another case where the applicable statute of limitations under the UCMJ was at issue—the Supreme Court stated: “The 

question before us is important, and there are reasonable arguments on both sides.” 141 S. Ct. 467, 469 (2020). In the 

course of reviewing de novo the issue before us, I note that the 

Supreme Court’s observation in Briggs similarly holds true in 

the instant case. 

A. The Plain Language Approach to Interpreting

NDAA 2017

Appellee’s argument in this case is straightforward. Appellee begins by quoting the following pronouncement which 

the Supreme Court made just last term: “This Court has explained many times over many years that, when the meaning 

of the statute’s terms is plain, our job is at an end.” Bostock v. 

Clayton Cty., 140 S. Ct. 1731, 1749 (2020). Appellee then argues that because the language of the current version of Article 43 is plain, this Court is compelled to enforce the law exactly as it appears on the books.

Appellee’s conclusion about the effect these latest amendments should have on his convictions is unsurprising. In sum, 

he argues that his prosecution for these offenses was time-
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

6

barred. Appellee’s reasoning is as follows. First, the NDAA 

2017 amendments apply to the indecent acts offenses with 

which he was charged because his court-martial was still 

pending on the date the amendments became effective, and 

Congress made these amendments retroactive. Second, the 

statute of limitations “catch-all” provision of Article 43, 

UCMJ—which provides for a five-year statute of limitations 

for all offenses that do not expressly carry a different limitation—applies in this case because indecent acts with a child 

is not one of the enumerated “child abuse offenses” in the applicable version of Article 43, UCMJ. And third, the statute of 

limitations was not tolled in a timely manner because the

summary court-martial convening authority (SCMCA) did 

not receive the sworn charges until more than five years after 

the indecent acts occurred. Therefore, Appellee avers, the 

plain language of Article 43, UCMJ, compels this Court to vacate his convictions for indecent acts with a child. 

Appellee’s position seems amply supported by a number of 

recent Supreme Court precedents. In addition to Bostock

quoted above, Appellee cites the following cases: Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 

(2017) (noting that it is a “basic and unexceptional rule that 

courts must give effect to the clear meaning of statutes as 

written”); NLRB v. SW Gen., Inc., 137 S. Ct. 929, 942 (2017) 

(“The text is clear, so we need not consider . . . extra-textual 

evidence.”); and Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 

1725 (2020) (stating that courts “may not narrow a provision’s 

reach by inserting words Congress chose to omit”) (citing Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1900 (2019)). 

There are a host of other cases with similar holdings, such as 

Garcia v. United States, 469 U.S. 70, 75 (1984) (stating that 

where statutory language is clear, “judicial inquiry is complete”) and Richards v. United States, 369 U.S. 1, 10 (1962) 

(courts “are bound to operate within the framework of the 

words chosen by Congress”).

Appellee’s position also seems fortified by certain important aspects of the NDAA 2017 amendments to Article 43, 

UCMJ. For example, Congress clearly spelled out in the new 

provisions eight separate sections of the United States Code 

(along with their congruent punitive articles under the 

UCMJ) that constitute the offense of child abuse. See NDAA 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

7

2017, § 5225(d). And yet, these same provisions make no mention of Article 134, UCMJ, offenses generally or of indecent 

acts specifically. Under the canon of construction denoted as 

expressio unius est exclusio alterius (that is, to express or include one thing implies the exclusion of the other) this absence of a reference to indecent acts indicates that those offenses are not included under the umbrella term of child 

abuse. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661 (2007). Only where a provision includes 

a residual clause or other language indicating that an enumerated list is nonexclusive should a court infer that Congress did not intend a list of this nature to be exhaustive. See 

Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). Congress 

included no such language in Article 43, UCMJ. And importantly, this Court is not generally at liberty to simply add 

to a list that Congress created. See Lomax, 140 S. Ct. at 1725.

B. The Absurdity Doctrine 

As can be seen, these pronouncements by various courts, 

as well as the canon of expressio unius, seemingly mandate 

the absolutist position that judges must unfailingly apply the 

plain language of a statute in all cases and in all circumstances no matter what. The majority certainly takes this 

view, refusing to “rewrit[e] Article 43(b)(2)(B), UCMJ, to 

make the definition of ‘child abuse offense’ more inclusive.” 

To be clear, there is much to commend this viewpoint and I 

am loath to venture one syllable beyond the plain language of 

a statute. See Bostock, 140 S. Ct. at 1738 (describing how 

judges should defer to “the legislative process reserved for the 

people’s representatives”).4

 

4“[L]egislative history can never defeat unambiguous statutory 

text.” Bostock, 140 S. Ct at 1750. That point is a given. However, in 

the instant case it seems to me that if Congress intended such a 

radical reduction in the statute of limitations pertaining to sexual 

offenses against children, we should expect to see at least some legislative history that would align with the majority’s interpretation 

of the statute. Cf. Terry v. United States, 141 S. Ct. 1858, 1860–62 

(2021) (discussing at length the history behind the retroactive modification of the First Step Act’s statutory penalties). 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

8

However, this absolutist approach ignores the fact that 

the Supreme Court has long recognized the existence of a legal safety valve of sorts known as “the absurdity doctrine.” 

Many different versions of this doctrine have circulated over 

the years in court opinions and in scholarly articles. However, 

I believe it can best be stated as follows: The absurdity doctrine is the legal principle that, in rare and exceptional circumstances, a literal reading of a statute is not mandated 

when it is indisputably clear that Congress never intended 

that literal reading, and such a reading is so absurd and 

would lead to such an unjust result as to offend all moral or 

common sense. See Church of the Holy Trinity v. United 

States, 143 U.S. 457, 459–60 (1892); Pub. Citizen v. U.S. Dep’t

of Just., 491 U.S. 440, 470–71 (1989) (Kennedy, J., concurring); United States v. Lucero, 989 F.3d 1088, 1098 (9th Cir. 

2021); United States v. Fitzgerald, 906 F.3d 437, 455–56 (6th 

Cir. 2018) (Griffin, J., dissenting); In re Taylor, 737 F.3d 670, 

681 (10th Cir. 2013); Lubow v. United States Dep’t of State, 

923 F. Supp. 2d 28, 37 (D.D.C. 2013).

The existence and purpose of the absurdity doctrine has 

been repeatedly acknowledged for more than a century. 

“[W]hen the statute’s language is plain, the sole function of 

the courts—at least where the disposition required by the text 

is not absurd—is to enforce it according to its terms.” Lamie 

v. U.S. Tr., 540 U.S. 526, 534 (2004) (emphasis added) (citations omitted). See also United States v. Andrews, 77 M.J. 393, 

400 (C.A.A.F. 2018) (“the plain language of a statute will control unless it leads to an absurd result” (emphasis added) 

(quoting United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 

2013)); United States v. Herrmann, 76 M.J. 304, 308 (C.A.A.F. 

2017) (observing that courts enforce statutes according to 

their terms, “at least where the disposition required by the text 

is not absurd” (emphasis added) (citation omitted)); Crooks v. 

Harrelson, 282 U.S. 55, 60 (1930) (“the letter of the statute is 

not to prevail” if it runs contrary to the plain intent of Congress (emphasis added)). The doctrine, properly understood, 

is “an implementation of (rather than . . . an exception to) the 

ordinary meaning rule.” William N. Eskridge Jr., Interpreting 

Law 72 (2016). 

In analyzing this legal principle, I begin by noting that 

when the language of a statute is ambiguous rather than 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

9

plain, the absurdity doctrine does not come into play. See 

John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 

2387, 2444 (2003) (describing how the absurdity doctrine is 

only implicated when statutory language plainly compels a 

particular result). Rather, other canons of judicial interpretation apply in those circumstances. See Amy Coney Barrett, 

Substantive Canons and Faithful Agency, 90 B.U.L. Rev. 109, 

117–18 (2010) (describing the applicability of canons like the 

rule of lenity, the constitutional avoidance canon, and the 

Charming Betsy canon in situations where there are multiple, 

plausible interpretations of the statutory language). 

Here, the amended language of Article 43, UCMJ, is, indeed, “plain.” First, indecent acts with a child clearly is not 

one of the enumerated offenses in the statute that constitutes 

child abuse. Therefore, consistent with the principle of expressio unius as explained above, it is evident that the statute 

does not expressly provide for a statute of limitations for this 

offense that extends beyond the general five-year time limit. 

And second, § 5225(f) of NDAA 2017 clearly states that the 

amendments contained therein “shall apply to the prosecution of any offense committed before, on, or after the date of 

enactment of [§ 5225] if the applicable limitation period has 

not yet expired.” (Emphasis added.) Therefore, I agree with 

the majority that it is inarguable that the plain language of 

the statute makes the amendments retroactive and that they 

apply to Appellee’s court-martial which was still pending on 

the effective date of the amendments. I.N.S. v. St. Cyr, 533 

U.S. 289, 318–19 & n.43 (2001) (holding that Congress’s use 

of “before, on, or after” language “indicate[s] unambiguously 

its intention to apply specific provisions retroactively”), superseded by statute on other grounds, REAL ID Act of 2005, Pub. 

L. No. 109-13, 119 Stat. 310 (codified at 8 U.S.C. §1252), as 

recognized in Nasrallah v. Barr, 140 S. Ct. 1683 (2020)); 

United States v. Lopez de Victoria, 66 M.J. 67, 72 (C.A.A.F. 

2008) (recognizing that “Congress certainly possesses the constitutional authority to apply legislation retroactively”); 

Jeudy v. Holder, 768 F.3d 595, 601 (7th Cir. 2014) (noting that 

the temporal language of “ ‘before’ . . . unmistakably indicates 

retroactivity”). 

I next underscore that Congress has the constitutional 

prerogative to pass legislation that courts may deem poorly 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

10

reasoned or ill-advised. Thus, judges are not empowered to 

ignore the plain language of a statute merely because they 

view the law as being unwise, illogical, or even harmful. 

Simply stated, the policy or legal concerns of unelected judges 

cannot be allowed to trump the legislative will of the people’s 

representatives. Accordingly, if there is a basis to conclude 

that Congress intended the plain language of a statute or the 

effects of that plain language, judges must defer to Congress’s 

legislative authority and must not invoke the absurdity doctrine. See Crooks, 282 U.S. at 60; see also United States v. 

Cook, 594 F.3d 883, 890–91 (D.C. Cir. 2010). 

However, “[w]here the plain meaning of words used in a 

statute produces an unreasonable result, ‘plainly at variance 

with the policy of the legislation as a whole,’ [the Court] may 

follow the purpose of the statute rather than the literal 

words.” United States v. N.E. Rosenblum Truck Lines, Inc., 

315 U.S. 50, 55–56 (1942) (citation omitted). In the instant 

case, Appellee has not demonstrated any basis to conclude 

that Congress did indeed intend for the NDAA 2017 amendments to reduce the statute of limitations for the offense of 

indecent acts with a child. Specifically, in seeking to address 

this point in his brief and at oral argument, Appellee has only 

managed to muster two unconvincing arguments in support 

of his position.

First, Appellee cites Bostock for the proposition that “criminal defendants should be able to ‘rely on the law as written, 

without fearing that courts might disregard its plain terms 

based on some extratextual consideration.’ ” 140 S. Ct. at 

1749. Appellee then goes on to aver, “This justification alone 

provides a non-absurd reason why Congress may have reduced the statute of limitations.” Although the concept of reasonable reliance is certainly an important factor that judges 

should consider in this context, Appellee’s point is simply not 

responsive to the query at hand of whether Congress intended

to write the NDAA 2017 amendments to Article 43, UCMJ, in 

such a manner as to cause the absurd result now at issue. To 

be sure, the Supreme Court has observed that a “principal 

benefit of statutes of limitations is that typically they provide 

clarity” and that “[f]or persons who know they may be under 

investigation, a known statute of limitations provides a date 

after which they may no longer fear arrest and trial.” Briggs, 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

11

141 S. Ct. at 471. However, such observations are far less applicable here where Appellee was already prosecuted and convicted of these indecent acts with a child offenses. If anything 

Congress’s amendments to Article 43, UCMJ, served to unsettle the expectations of victims because, if Appellee’s arguments were adopted, what once was a timely prosecution 

would now be barred by the statute of limitations. Cf. id. (describing how “a clear deadline allows [sexual assault victims] 

to know by when they must make [the] choice” to “identify 

their attackers and press charges”). The majority, however, 

adopts Appellee’s view and asserts that it is not absurd “for a 

statute of limitations to bar prosecution of a person who committed a heinous crime.” That proposition is undeniably true. 

However, it is one thing to prospectively limit the temporal 

reach of a criminal statute and quite another thing to retroactively shorten a statute of limitations in such a manner that 

prior convictions that were timely filed based on the statute of 

limitations in effect at the time of the offense must now be 

overturned. It seems to me that this latter scenario, which 

obviously applies in the instant case, fits squarely within the 

ambit of the absurdity doctrine.

Second, Appellee cites Shady Grove Orthopedic Assocs., 

P.A. v. Allstate Ins. Co., 559 U.S. 393, 414 n.13 (2010), and 

Artis v. District of Columbia, 138 S. Ct. 594, 607–08 (2018), 

for the proposition that “Congress may well have accepted 

anomalies such as this one [pertaining to the statute of limitations] in the name of providing for a uniform system.” However, Appellee fails to articulate in any manner how Congress’s goal of providing for a uniform system of military 

justice demonstrates that it intended or “accepted” the anomalies presented here. For example, a literal reading of NDAA 

2017 would cause the offense of indecent acts with a child to 

carry a much shorter statute of limitations than a simple assault consummated by a battery of a person who has not attained the age of sixteen years. See NDAA 2017, § 5225. That 

result is anomalous indeed, but there is no reason to believe 

that Congress intended or accepted it.

The majority, however, contends that “we know that a rational Congress could have intended to enact a five-year period of limitations for Article 134, UCMJ, offenses because the 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

12

99th Congress did exactly that thirty-five years ago.” The majority’s view is unobjectionable if the question is framed as 

follows: “Could a rational Congress impose a five-year statute 

of limitations for child abuse offenses?” The answer to that is 

certainly yes. However, I submit that a better way to frame 

the question is: “Would a rational Congress, without any debate, discussion, or explanation, drastically decrease the statute of limitations for child abuse offenses where it had both 

repeatedly and recently increased that limitations period and

where that dramatic reduction in the limitations period would 

serve as a huge and unanticipated windfall benefitting child 

sex abusers who already had been convicted and sentenced 

for their crimes?” The answer to that question is no. Indeed, I 

believe that a statutory interpretation presuming such an act 

and intent of Congress would be absurd. See Griffin v. Oceanic 

Contractors, 458 U.S. 564, 575 (1982) (“interpretations of a 

statute which would produce absurd results are to be avoided 

if alternative interpretations consistent with the legislative 

purpose are available” (emphasis added)).

The position of the majority and Appellee is undermined 

by the nature of the multiple amendments that Congress has 

made over the decades to the statute of limitations applicable 

to indecent acts with a child. As noted above, in 1986, Congress increased the time limit for the Government to submit 

sworn charges to the SCMCA from three years to five years; 

in 2003, Congress increased the time limit from five years to 

the date of the victim’s twenty-fifth birthday; and, in 2006, 

Congress increased the time limit from the victim’s twentyfifth birthday to the life of the victim. This repeated ratcheting up of the length of time during which the Government 

could pursue charges in cases involving indecent acts with a 

child provides no basis to conclude that, in 2016, Congress 

suddenly intended to drastically reduce the statute of limitations pertaining to those offenses. Quite the opposite is true. 

This is particularly so in light of the fact that a plain language 

reading of the NDAA 2017 amendments would cause the statute of limitations for the offense of indecent acts with a child 

to plummet drastically from as long as the life of the child 

victim to the comparatively meager time period of just five 

years from the date of the offense. See NDAA 2006, § 553. 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

13

Additionally, this series of amendments to Article 43, 

UCMJ, highlight how complex the act of legislating on this 

topic has become. Specifically, in NDAA 2012, Congress made 

conforming changes to the legislation; in NDAA 2014, Congress incorporated all of the changes made to Article 120-type 

offenses; and in NDAA 2017, Congress eliminated significant 

passages in the statute and replaced them with new language. This complicated situation provides a basis to conclude 

that the plain language included in the most recent amendments to Article 43 is more likely the product of a drafter’s 

error rather than an intentional act of Congress.

Moreover—and importantly—if the criminal conduct Appellee perpetrated in 2004 occurred today, that conduct would 

now be charged under Article 120b, UCMJ, rather than under 

Article 134, UCMJ. See Manual for Courts-Martial, United 

States pt. IV, para. 45b.b.(4)(e) (2016 ed.); Manual for CourtsMartial, United States pt. IV para. 62.b.(3) (2019 ed.). And 

Article 120b, UCMJ, is one of the enumerated child abuse offenses under Article 43, UCMJ, that carries an expanded statute of limitations based on the life of the child victim or within 

ten years of the date the offense was committed, whichever is 

longer. In other words, based on the law as it stands today, 

and based on the law as it stood at the time Appellee committed his crimes against his young daughter, this prosecution 

would be deemed timely.5 Thus, the majority’s literal reading 

of the NDAA 2017 amendments to Article 43, UCMJ, would 

constitute an inexplicable and fleeting aberration from the repeated manifest intent of Congress that would be not only 

surprising but positively stunning. Thus, I conclude that this 

case is one of those exceptional circumstances where the application of the plain language as written would produce a result “demonstrably at odds with the intentions of its drafters.” 

Griffin, 458 U.S. at 571.

Nevertheless, this conclusion in no way ends my analysis. 

There are other crucial strictures on a court’s ability to invoke 

the absurdity doctrine beyond the fact that there is no basis 

to conclude that Congress intended the legislative result. 

 

5 For this reason, applying the absurdity doctrine in this case 

does not run afoul of the Ex Post Facto Clause. 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

14

Most important among them is that a plain language reading 

of the statute must be truly “absurd.” As the Supreme Court 

recently stated, a merely “odd” result does not rise to the level 

of an “absurd” result. Cochise Consultancy, Inc. v. U.S. ex rel. 

Hunt, 139 S. Ct. 1507, 1513 (2019) (quoting Exxon Mobil 

Corp. v. Allapattah Servs., Inc., 545 U. S. 546, 565 (2005)). 

Indeed, long ago the Supreme Court held that in order for the 

absurdity doctrine to apply to a case—“thereby “justify[ing] a 

departure from the letter of the law”—the absurdity “must be 

so gross as to shock the general moral or common sense.” 

Crooks, 282 U.S. at 60; see also W. Minn. Mun. Power Agency 

v. FERC, 806 F.3d 588, 596 (D.C. Cir. 2015) (same). As the 

Fourth Circuit held in Sigmon Coal Co. v. Apfel, when the literal application of the statutory language “results in an outcome that can truly be characterized as absurd, i.e., that is ‘so 

gross as to shock the general moral or common sense,’ . . . then 

we can look beyond an unambiguous statute and consult legislative history to divine its meaning.” 226 F.3d 291, 304 (4th 

Cir. 2000) (citations omitted). See also Leiba v. Holder, 699 

F.3d 346, 351 (4th Cir. 2012) (same). 

As discussed below, I conclude that this level of absurdity 

has been reached in the instant case. Indeed, to echo the 

United States Court of Appeals for the District of Columbia 

Circuit in Cook, I am convinced that the plain language of the 

applicable version of Article 43, UCMJ, “creates ‘an outcome 

so contrary to perceived social values that Congress could not 

have intended it.’ ” 594 F.3d at 891 (quoting Landstar Express 

Am., Inc. v. FMC, 569 F.3d 493, 498–99 (D.C. Cir. 2009)). 

It is now universally recognized that child victims of sexual abuse are particularly vulnerable and susceptible to control and manipulation by their abusers. In many situations it 

may prove extraordinarily difficult if not impossible for child 

victims to promptly report instances of indecent acts committed upon them. This is especially true where, as here, the 

child victim is very young at the time of the offenses and the 

abuser is a parent. Therefore, I am convinced that it would 

“shock the general moral or common sense” to require, for example, a six-year-old child who was sexually abused by a parent in 2011 to report that sexual abuse by 2016 when the child 

was just eleven years of age in order for criminal charges 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

15

against that parent to be timely filed. And yet, that is the legal result adopted by the majority.

This unjust result is not hypothetical, as reflected in the 

facts of the instant case where a literal reading of the NDAA 

2017 amendments will now result in this Court vacating Appellee’s convictions involving six specifications of indecent 

acts with a child. Nor is it confined to this single case. For 

instance, this Court has another case pending before us where 

a literal reading of the NDAA 2017 amendments will presumably compel us to vacate an appellant’s convictions for indecent liberties with a minor. See United States v. Adams, 80

M.J. 461 (C.A.A.F. 2020) (order granting review). And there 

may well be other pre-2017 cases in the pipeline involving indecent acts with a child or indecent liberties with a child 

where charges may never be able to be brought or where convictions may need to be vacated because of the position the 

majority takes today. This result clearly “creates ‘an outcome 

so contrary to perceived social values that Congress could not 

have intended it.’ ” Cook, 594 F.3d at 891 (quoting Landstar 

Express, 569 F.3d at 498–99).

By any commonsense definition of the term, the very nature of the offense of indecent acts with a minor constitutes 

“child abuse.” This point is highlighted by the indecent acts 

which Appellee repeatedly committed on his ten-year-old 

daughter where he “placed his tongue inside her mouth while 

kissing her, rubbed her vulva with his fingers, placed her 

hand on his penis, and rubbed his penis against her vulva, all 

with the intent to gratify his sexual desires,” and “[o]n multiple occasions . . . penetrated her vulva with his finger and 

placed her hand on his penis.” McPherson, 2020 CCA LEXIS 

350, at *4, 2020 WL 5798492, at *2. This was “child abuse” in 

its vilest and clearest form. 

Therefore, pursuant to my invocation of the absurdity doctrine, I would hold that despite the language contained in the 

NDAA 2017 amendments, the offense of indecent acts with a 

child constitutes a child abuse offense for statute of limitations purposes under Article 43, UCMJ. In the instant case 

where Appellee committed the offense of indecent acts with a 

child in 2004 by repeatedly sexually abusing his ten-year-old 

daughter, and where the SCMCA received the sworn charges 
United States v. McPherson, No. 21-0042/AR

Chief Judge OHLSON, dissenting

16

in 2017, the Government prosecuted Appellee in a timely 

manner.

III. Conclusion

In closing, I emphasize that courts must always be mindful of the fundamental principle that the absurdity doctrine 

should be invoked only in the rarest of circumstances. United 

States v. Mooney, 77 M.J. 252, 257 n.4 (C.A.A.F. 2018) (“Regardless of how opaque the rationale for a statute might be, 

the plain language meaning must be enforced and is rebutted 

only in ‘rare and exceptional circumstances.’ ” (quoting Ardestani v. I.N.S., 502 U.S. 129, 135 (1991)); Am. Tobacco Co.

v. Patterson, 456 U.S. 63, 75 (1982) (“[g]oing behind the plain 

language of a statute in search of a possibly contrary congressional intent is ‘a step to be taken cautiously’ ” (citation omitted); see also Negrete-Ramirez v. Holder, 741 F.3d 1047, 1054 

(9th Cir. 2014) (noting that the Supreme Court rarely invokes 

absurdity doctrine to override unambiguous legislation). The 

act of disregarding or correcting the plain language of a statute is fraught with constitutional peril. Nonetheless, I conclude that this is the appropriate step in the instant case and 

I profoundly regret that the majority declined to so do. For 

that reason, I respectfully dissent.