This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

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_______________ UNITED STATES Appell ant

v. Danny L. Mc PHERSON , Staff Sergeant United States Army
, Appellee

No. 21

- 0042 Crim. App. No. 20180214 Argued April 21, 2021

— Decided August 3 , 2021 Military Judge s : 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

. F ollow ing this plain meaning, the United States Army Court of Criminal Appeals (ACCA) dismissed a charge and six s pecifications 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 Sept. 28, 2020) (unpublished)

. T he Government argues that we should reverse the ACCA b ecause its decision goes against Congress ’ s apparent intentions in enacting the statute of limitations at issue and because the decision work s an undesirable result

. T o accept the Government ’ s argument, we would have
to “ find justificatio n for wrenching from the words of a statute a meaning which literally they [do] not bear in order to escapeUnited States v. McPherson , No. 21

- 0042/AR Opinion of the Court

2consequences thought to be absurd or to entail great hardship. ” Crooks v. Harrelson , 282 U.S. 55, 60 (1930). This we cannot do. “ L aws enacted with g ood 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 G riffin v. Oceanic Contractors, I nc. , 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 . W e 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 ); twospecifications of aggravated sexual contact with a child, in violation of Article 120(g), UCMJ , 10 U.S.C. § 120(g) ( Supp. II 200 8); 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 , fo rfeiture 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 A rticle 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 th ese specification s occurred in 2004 and the s ummary c ourt

- m artial c onvening a uthorit y (SCMCA) did not receive the charges until 2017, the ACCA concluded that the five

- year perio d of limitations had expired

. Id.

, 2020 WL 5798492, at *1. T he 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 A CCA reassessed Appellee ’ s sentence , reducing it to fifteen years of confinement, reduction to the grade of E

– 1, andUnited States v. McPherson , No. 21

- 0042/AR Opinion of the Court

3 a disho norable 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.

I I . Background
C harge 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 200 4 and August 2004 and others oc c u rring between August 2004 and December 2004. At the time, his daughter was ten years old. The indecent act s included placing his tongue in her mouth, rubbing her vul v a with his fingers, rubb ing his penis agai nst her vulva, penetrating her vul v a with his finger
, and placing her hand on his penis. T he SCMCA received Charge I and its s pecifications 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 C harge I

. McPherson , 2020 CCA LEXIS 350
, at *2

– 3, 2020 WL 5798492 , at *1. The ACCA determined that the statute of limi tations applicable to the alleged offense s 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 ofsworn 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 orUnited 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]

. Th e ACCAdetermined that no earlier version of the statute of limitations applied because § 5225(f) of the NDAA 2017 provide s :

“ 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 ; s ee McPherson , 2020 CCA LEXIS 350
, at *1 4

– 1 5
, 2020 WL 5798492 , at * 6

. Under th e 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, i s five years. McPherson , 2020 CCA LEXIS 350
, at * 3
, 2020 WL 5798492 , at * 1

. The ACCA reached this conclusion because th e 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 p erson 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 b y 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 1 28). (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 “ ch ild abuse offense ” in Article 43(b)(2) (B) , UCMJ, d oes not include any offenses under Article 134, UCMJ. Id

. at * 12

– 13
, 2020 WL 5798492 , at * 5

. Consequently, b ecause more than five years had run since 2004
, the ACCA determined that the statute of limitation s had expired

. Id. at *3, 2020 WL 5798492 , at *1. In reaching this result, the ACCA re cognized that Congress enacted additional legislation addres sing 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]

. Th e version of Article 43 (b)(2)(B) , UCMJ, that was in effect on Decembe r 22, 2016
, is codified at 10 U.S.C

. § 843 (Supp. II 2014) [hereinafter the 2014 version of Article 43, UCMJ]

. Under th e 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 t he period of “ child abuse offense [ s ] ” was “ the life of the chil d ” 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

. T he ACCA , however, held that § 531(n)(2) could not affect the result of Appe llee ’ s case because the a mendment 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 reason ed, the period of limitations under the 2016 version of A rticle 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 previo u sly barred by the 2016 version of A rticle 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
, t he ACCA held that even though Appell ee had not raised the statute of limitationsUnited States v. McPherson , No. 21

- 0042/AR Opinion of the Court

6 as a def ense 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, 2 020 WL 5798492 , at *13

– 14.

I I I. Standard of Review The question s of whic h 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 limitation s at trial and t he military judge also d id not advise Appell ee 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, Appell ee 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).

I V

. Discussion On appeal, the G overnment makes five arguments for reversing the ACCA ’ s decision that the 2016 version o f 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 th at 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 t he 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 argument s but ultimately determine that they lack merit and that the ACCA correctly decided this case.

A. Applicable Version of Article 43, UCMJ

The G overnment 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 precedent s , the Government argues that an accused is generally subject to the statute of limitations in effect at the time of the offense. Accordingly,
t he 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 spec ifications

. Under th e 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)

. Th e 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 o f this title (article 134).” Id. § 8 43(b)(2)(B)(v). Therefore , if th e 2004 version of Article 43, UCMJ, were appli cable to this case
, the period of limitation s would not have run for the indecent act s specifications because the named victim was only twenty

- three
years old when the SCMCA received the charges in 2017

. We cannot accept th e Government ’ s argument

. As the ACCA correctly reasone d , 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, t his specific statutory provision overcomes the presumption
, described in Toussie , that the statute of limitations in effectUnited States v. McPherson , No. 21

- 0042/AR Opinion of the Court

8 at the time of the offense cont ro ls. In Toussie , t he Supreme Court rec ognized that “ questions of limitations are fundamentally matters of legislative

. . . decision ” and that a statute of limitation s 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) , UCM J, were non

substantive and therefore did not r etroactively s horten the period of limitations for the spe cifications of indecent acts in this case

. T he Government asserts that Congress revis ed the list merely to reflect numerous changes to the names, substance, and numbering of several punitive article s

. 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, t he Government emphasizes t hat Congr ess described the amendment s 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 indecen t 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 offense s under A rticle 134 , UCMJ

. A nd 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. ” Brot herhood 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 rea son 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, t he NDAA 2017 made changes to various punitive articles, and C ongress needed to amend the definiti o n of “ child abuse offense ” to take account of these changes

. But i n listing new offense s 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 , th en Congress made a substantive oversight in drafting the statute. We can recognize that this kind of mistake in statutory drafti ng occurred, but we cannot take upon oursel ves 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 se em 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 asser ts 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 amendment s made by this section shall take effect immediately after the amendments made [to theUnited 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

. T he Government asserts: “ Accordingly, it can be said that none of the provisions [in the NDAA 2017] to ok 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 NDA

A 2017 would go into effect on a future date to be specified by the President
, such a belief wa s incorrect

. Section § 5542(a) of the NDAA 2017 provide s : “ Except as otherwise provided . . . the amendments made by this division shall take effect on the date designated by the P resident .” § 5542(a), 130 Stat. at 2967 ( e mphasis added)

. Section 5542(a) thus contemplate d exceptions, and § 5 2 25 (f) provided one such exception. Section 5 2 25(f) made the amendment s 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 specification s 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, appl ies to this case
, the specifications at issue f all 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)
,United States v. McPherson , No. 21

- 0042/AR Opinion of the Court

11 UCMJ, does not include Article 134 , UCMJ, in the l ist 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 a ny of the following provisions. ’ ” Th e Government contend s 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. § 92 0 b ( 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

. Wh at we believe is most significan t is that the statute uses the word s “ 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 s pecifications likely

“ would constitute ” offenses under Article 120b, UCMJ, if that A rticle had existed in 2004 and if the charge sheet had informed Appellee that he was accused of violating that a rticle

.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 A rticle 120b , UCMJ, an a rticle that did not exist in 2004

. A nd the charge sheet accuse d Appell ee of violating Article 134, UCMJ, an entirely different a rticle. The acts alleged in the specific ations are therefore not acts that constitute “ child abuse offense [ s ]” within Congress ’ s defin ition 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 conc luded)
, we cannot enforce th e a rticle 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 wh e n doing so would produce an absurd result. The Supreme Court has said tha t “ a departure from the letter of the law ” may be justified to avoid an absurd result if “ the absurdity

. . . is so gross as toUnited States v. McPherson , No. 21

- 0042/AR 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 requiremen t with four distinct arguments

. Upon inspection
, however, Supreme Court precedent establishe s that each of the Government ’ s arguments is flawed

. First, t he 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 statute s of limitation s preve nt some perpetrators from being brought to justice. See Pendergast v. United States , 317 U.S. 412, 418 (1943) (“ Everystatute of limitations, of course, may permit a rogue to escape .”)

. Stat utes of lim itations 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, 54 2 n.10 (1989) (explaining that “ the interest in prompt resolution of disputes is vind icated by all statutes oflimitations 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, t he 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 limitation s 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 rationallyUnited States v. McPherson , No. 21

- 0042/AR Opinion of the Court

13 have made such a ” readin g 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 ” (interna l quotation marks omitted) (citation omitted))

. The Supreme Court reaffirmed this standard and made clear in two recent precedents th at 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 i n fact intended the five

- year period of l imitations 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 offense s

. 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, t his Court could not have properly held the five

year period of l imitat i ons to be inherently absurd. W e therefore cannot properly hold that it is inherently absurd now.

I n Logan
, the Supreme Court used precisely this reasoning to h o ld that the absurdity doctrine did not apply. 552 U.S.
at 36

– 37. In that case, the petiti oner 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)

. T he 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 3 6

– 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 th at “[ a] conclusion that Congress increased the period of limitations for child abuse offenses, while simultaneously and drastically shortening thelimitations period for the same malfeasance, would be absurd. ” We agree that internal inconsistency in legisl ation 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 ”). W e also agree that , whil e eliminating offenses under Article 134, UCMJ, from the definition of “ child abuse offense, ” § 52 2 5 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 te n years ” after the offen s e. (Emphasis added.) In the 2014 version of Article 43(b)(2)(A), UCMJ, the period w as 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 § 52 2 5 of the NDAA in this
way create d an inconsistency

. On the contrary, o ne change affected the leng th of the statute of limitations wh i le another change affected the range of offense s covered by the statute of limitation s

. These changes are not in conflict because a court can enforce the plain meaning of each of them exactly as they are written

. See Tur kette , 452 U.S. at 585 ( applyingUnited 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 ” ).

F inally
, 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 perio d of limitation s 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 f ocuses 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 reject ed 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. ” O ncale 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 t he doctrine of repose
,
“ c riminal statutes of limitation are to be liberally interpreted in favor of repose. ” United States v. Marion , 404 U.S. 307, 32 2 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 Gove rnment 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 itUnited States v. McPherson , No. 21

- 0042/AR Opinion of the Court

16 could be absurd to construe them according to their plai n 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 i s essentially asking an A rticle I court to disregard the plain meaning of the 2016 version of Artic le 43, UCMJ, to achieve a result that the Ex Post Facto Clause prevents Congress from accomplishing directly . As described above, Congress recognized the problemwith the 2016 version of Article 43, UCMJ, and tried to correct it with § 53 1 ( n ) (2) of the NDAA 2018. The ACCA properly concluded that § 53 1 ( n)(2) could not reviv e 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 i f 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 textual ly 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 suf fice 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 *1 6 (S alussolia
, 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 th at the rule of lenity applies to the interpretation of statutes of limitations. But we agree that interpreting a statute of limitation s 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 induceCongress 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 E rrorFinally, 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) errorthat 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 w e have found error. The statute of limitations barred prosecution of the six specification s of Charge I and the military judge did not inform Appellee th at 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 G overnment 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 judgme nt

. 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 A rticle 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 app lying the absurdity doctrine conflict s 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 s pecifications accusing Appellee of particularly egregious offenses. But the question before this C ourt is not whether Appellee ought to be tri able for these offense s , 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 201 6 ), hasUnited 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.U nited States v. McPherson , No. 21

- 0042/AR

Chief Judge OHLSON
, with whom Judge SPARKS joins
, dissenting

. The majority concludes that t he 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 t he majority ’ s literal reading of the statute is not without merit. After all, as Justice Kagan famous ly 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 i t 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 o bvious that the language contained in NDAA 2017 was a product of poor draftsmanship in the course of a complicated seri es of revisions to Article 43 and

was in no way reflective of an intent by Congress t o 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, 29 09 (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 S calia L ecture, K agan D iscusses S tatutory I

nterpretation
, Harvard Law Today (Nov. 25, 2015, http://today.law.harvard.edu/in

- scalia

- lecture

- kagan

- discusses

statutory

- interpretation.United States v. McPherson , No. 21

- 0042/AR Chief Judge OHLSON, dissenting

2 limitations for such abhorre nt crimes and
, during the legislative process involving NDAA 2017
, there was no public indication w hatsoever that even a single m ember of Congress sought to drastically alter this trajectory

. Further, I am convinced that the ma

jority ’ s restrictive, literal interpretation of the statute leads to an absurd and unjust result that offends all moral and comm on 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 di d 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. 202 0 ) (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 Articl e 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 respectfu lly 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 ton gue 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 20180 214, 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 thestatute 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 intime of war, missing movement in time of war, and any offense punishable by death, all of which “ may be tried a nd 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 wit h 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. 1 09

- 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). In decent 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 t hey 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, § 5 4 1(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

4In 2013, Congress amended the statute once again by adding sexual assault and sexual assault of a child to the list ofoffenses 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 off ense ’ means an act that involves abuse of a personwho 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), u nless 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 batt ery in violation of section 928 of this title (article 128). (v) Kidnaping, assault with intent to commitmurder, 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 the m 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, asa child abuse offense. Further, the statute stated that its provisions “ shall apply to the prosecution of any offense committed befor e , 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. Br iggs

— which notably wasanother case where the applicable statute of limitations under the UCMJ was at issue

— the Supreme Court stated: “ Thequestion before us is important, and there are reasonable arguments on both sides. ” 141 S. Ct. 467, 46 9 (2020). In th e 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 conclusi on 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

— w hich provides for a five

- year statute of limitationsfor 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 o f 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. Therefo re, Appellee avers, theplain 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 quote d above, Appellee cites the following cases: Star Athletica, L.L.C. v. Varsity Brands, Inc. , 137 S. Ct. 1002, 1010 (2017) ( noting that i t 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 c ourts “ may not narrow a provision ’ s reach by inserting words Congress chose to omit ”) (citing Virginia Uranium, Inc. v

. Warren , 139 S. Ct. 1894, 190 0 (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

w here statutory language is clear, “judicial inquiry is complete ”) and Richards v. United States , 369 U.S. 1, 1 0 (1962) ( c ourts “ are bound to operate within the framework of the words chosen by Congress ”). Appellee ’ s position also see ms 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 NDAAUnited States v. McPherson , No. 21

- 0042/AR Chief Judge OHLSON, dissenting

72017, § 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 includesa 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 natur e to be exhaustive. See Sessions v. Dimaya , 138 S. Ct. 1204, 1212 (2018). Congressincluded 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. a t 1725.

B. The Absurdity Doctrine As can be seen, these pronouncements by various courts, as well as the canon of expressio uni u s , seemingly mandate the absolutist position that judges must unfailingly apply the plain language of a statute in all cases an d 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 sh ould expect to see at least some legislative history that would align with the majority ’ s interpretation of the statute. C

f

. 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 th e fact thatthe 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. 2 013); 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) (citation s 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 th at 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) (“ t he 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 thanUnited 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 aparticular result). Rather, other canons of judicial interpretation apply in those circumstances. See Amy Coney Barrett, Substantive Canons and Faithful Agency
, 9 0 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 a mended language of Article 43, UCMJ, is, indeed, “ plain. ” First, indecent acts with a child clearly is not

on e 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 “ sh all 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 pla in 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 recogn ized 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 poorlyUnited 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 arg ument, 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 d isregard 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

11141 S. Ct. at 471. However, such observations are far less applicable here where Appellee was already prosecuted and convicted of these indecent ac ts 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 limitati ons. 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 astatute 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 anot her thing to retroactive ly 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 scen ario, 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 acceptedanomalies 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 man ner 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

car ry 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 inten ded 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 theUnited 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 ha d both repeatedly and recently increased th at limitations period and where that dramatic reduction in the limitations period would serve as a huge and unanticipated windfall benefit ting child sex abusers who already had been convicted and sentenced for their crimes? ” T he answer to that question is no . Indeed, I believe that a statut ory interpretation presuming such an act and intent of Congress would be absurd. See Griffin v. Oceanic Contractors , 458 U.S. 564, 575 (1982) (“ i nterpretations of a statute which would produce absurd results are to be avoided if alternative interp retations consistent with the legislative
purpose are available ” (emphasis added) )

. The position of the majority and A ppellee is undermined by the nature of the multiple amendments that Congress has made over the decades to the statute of limitations appli cableto 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 o f the victim ’ s twenty

- fifth birthday; and, in 2006, Congress increased the time limit from the victim ’ s twenty

fifth birthday to the life of the victim. This repeated ratcheting up of the length of time during which the Government could pursue charges in c ases 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 languagereading 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 pe riod 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, th is 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 confo rming 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 significantpassages in the statute and replaced them with new language. This complicated situ ation provides a basis to concludethat 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 App ellee 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 Courts

Martial, United States pt. IV para. 62. b.(3) (2019 ed.). AndArticle 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 o r 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 woul d be deemed timely. 5 Thus, the majority ’ s literal reading of the NDAA 2017 amendments to Article 43 , UCMJ, wouldconstitute an inexplicable and fleeting aberration from the repeated manifest intent of Congress that would be not only surprising but positive ly stunning. Thus, I conclude that thiscase 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

. Never theless, 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 af

oul of the Ex Post Facto Clause

.United States v. McPherson , No. 21

- 0042/AR Chief Judge OHLSON, dissenting

14 Most important a mong 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 la w ”

— 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, ’ . . . thenwe 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 C ongress 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 c ontrol and manipulation by their abusers. In many situations it may prove extraordinarily difficult if not impossible for childvictims to promptly report instances of indecent acts committed upon them. This is especially true where, as here, the child vic tim 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 chargesUnited States v. McPherson , No. 21

- 0042/AR Chief Judge OHLSON, dissenting

15against that parent to be timely filed. And yet, that is the legal result adopted by th e 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 C ourt vacating Appellee ’ s convictions involving six specifications of indecent
act s 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 wi th a minor. See United States v. Adams
, 80 M.J. 461 (C.A.A.F. 202 0 ) (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 “ create s ‘ 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 commi tted 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, ” a nd “[ 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 invoc ation of the absurdity doctrine, I would hold that despite the language contained in the NDAA 2017 amendments, the offense of indecent acts with achild constitutes a child abuse offense for statute of limitations purposes under Article 43, UCMJ. In the in stant 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 chargesUnited 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. Patters on , 456 U.S. 63, 75 (1982) (“ [g] oing behind the plainlanguage 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. 201 4) (noting that the Supreme Court rarely invokes absurdity doctrine to override unambiguous legislation). Theact of disregarding or correcting the plain language of a statute is fraught with constitutional peril. Nonetheless, I conclude that this is the a ppropriate step in the instant case and I profoundly regret that the majority declined to so do

. For that reason, I respectfully dissent.