PUBLISHED OPINION OF THE COURT

PER CURIAM:

The military judge dismissed Specification 2 of Charge IV (Terrorism), Charge VII (Attacking Civilians), Charge VIII (Attacking Civilian Objects), and Charge IX (Hijacking or Hazarding a Vessel or Aircraft) without prejudice. Appellant filed an interlocutory appeal under 10 U.S.C. § 950d(a)(1) because the military judge's order "terminates proceedings of the military commission with respect to a charge or specification." See 2012 Manual for Military Commissions (MMC), Rule for Military Commission (R.M.C.) 908(a)(1). That appeal is now before us.

On September 23, 2014, appellee filed a motion to dismiss appellant's appeal because it failed to comply with the timeliness requirement of 10 U.S.C. § 950d(e). On September 29, 2014, appellant opposed appellee's motion. On September 30, 2014, appellee filed a reply; and on October 2, 2014, appellant filed a surreply clarifying and reinforcing its positions. The parties agree that: (1) failure to file notice of appeal within five days of the underlying order results in a jurisdictional impediment to a government appeal; and (2) a request for reconsideration can extend the time for providing notice of appeal, but only if it is filed within five days of the underlying order to be appealed.

Appellee and appellant dispute the computation of when the request for reconsideration was filed, and how the request for reconsideration extends the time for filing notice of appeal. Appellant argues the request for reconsideration was filed within five days of the underlying order, and the clock restarts at day one when the reconsideration is decided. Appellee contends the request for reconsideration was filed seven days after the underlying order, and the request for reconsideration tolls, but does not restart, the five-day clock when the reconsideration is decided. We conclude that the notice of appeal was filed timely, and appellee's motion to dismiss appellant's interlocutory appeal is denied.

We apply the same standard of review as our superior court in its review of government interlocutory appeals under 18 U.S.C. § 3731. We review de novo whether appellant's notice of appeal was timely filed; however, "we are nonetheless mindful that the trial court's subsidiary factual findings are to be upheld unless clearly erroneous." United States v. Yunis, 859 F.2d 953, 958 (D.C.Cir.1988). See also United States v. Murdock, 667 F.3d 1302, 1306 (D.C.Cir.2012) (quoting United States v. Bailey, 622 F.3d 1, 5 (D.C.Cir.2010)) ("We `review[] the district court's factual findings for clear error ... [and] give due weight to inferences drawn from those facts by the district court."). We "defer under an abuse of discretion standard to the" military commission's "findings of fact..., including determinations of credibility," and a "`purely legal question' under [18 U.S.C. § ]3731 is reviewed de novo. United States v. Oruche, 484 F.3d 590, 595 (D.C.Cir.2007) (citations omitted). See also United States v. Rainey, 757 F.3d 234, 247 (5th Cir.2014) (citing United States v. Pratt, 728 F.3d 463, 477 (5th Cir.2013)) (In an appeal under 18 U.S.C. 3731, the appellate court "review[s] the sufficiency of the indictment de novo.").

Appellant argues that three versions of its motion for reconsideration were filed from August 15, 2014, to August 18, 2014, as follows:

Appellant's Response to Motion to Dismiss for Lack of Jurisdiction 2 (citations omitted). See also Appellant's Surreply to Motion to Dismiss for Lack of Jurisdiction 4-7. Appellant provided to our Court three emails, which listed attachments, and the August 18, 2014 Motion for Reconsideration in support of its position that two Motions for Reconsideration were filed on August 15, 2014, and the third Motion for Reconsideration was filed on August 18, 2014. However, appellant did not provide the emails' attachments themselves and conceded, "the Motion for Reconsideration was not accepted as filed by the Commission until Monday, August 18, 2014." Appellant's Surreply to Motion to Dismiss for Lack of Jurisdiction 4.

Appellee opposes these "facts," asserting appellant withdrew the August 15, 2014 Requests for Reconsideration "from filing in order to substantively revise the pleadings it would ultimately submit to the Commission three days later. None of these filings, nor any other filing or `notice,' w[ere] ever accepted for filing by the Military Commission" before August 18, 2014. Appellee's Reply to Motion to Dismiss for Lack of Jurisdiction 2. Because the two August 15, 2014 Motions for Reconsideration were not admitted into evidence at trial level, discussed in the military judge's findings, or admitted to our court as an appendix, we are limited to addressing the only Motion for Reconsideration provided to our Court, which is dated August 18, 2014, and has a Certificate of Service attached to it, which is also dated August 18, 2014.

Our Court is restricted to matters of law because this is an interlocutory appeal taken pursuant to 10 U.S.C. § 950d. 10 U.S.C. § 950d(g). We are bound by the military judge's findings of fact unless clearly erroneous. Murdock, 667 F.3d at 1306; United States v. Bookhardt, 277 F.3d 558, 564 (D.C.Cir.2002); Yunis, 859 F.2d at 958; United States v. Baker, 70 M.J. 283, 291-92 (C.A.A.F.2011); United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004). Because of the paucity of evidence of the two August 15, 2014 Motions for Reconsideration at the trial level, we are limited in our assessment of their relevance. See, e.g., Baker, 70 M.J. at 289-90 (noting that in an interlocutory appeal the appellate court is limited to reviewing matters of law and may not engage in fact finding.). Under these circumstances, we decline to accept appellant's assertions that either of the two August 15, 2014 Motions for Reconsideration stopped the notice of appeal clock.

This, however, does not end our analysis as to whether the August 18, 2014 Motion for Reconsideration was filed so as to preserve the government's ability to file a timely interlocutory appeal. The following chronology is relevant to the timeliness issue:

Title 10 U.S.C. § 950d(e) provides that the "United States shall take an appeal of an order or ruling ... by filing a notice of appeal with the military judge within 5 days after the date of the order or ruling." R.M.C. 908(b)(3) reads:

The five-day appeal limitation is "mandatory and jurisdictional," cannot be extended by a judge, and generally precludes this Court from entertaining appeals filed outside the stated period. See Bowles v. Russell, 551 U.S. 205, 207-08, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (citations omitted). See also United States v. Rodriguez, 67 M.J. 110, 111, 116 (C.A.A.F.2009) (citing Bowles, stating "[t]he congressionally-created statutory period [of 60 days] within which an accused may file a petition for grant of review is jurisdictional," and dismissing the petition for grant of review because it was filed 13 days late.).

Impact of a Reconsideration Request

The Military Commissions Act § 949a(a) empowers the Secretary of Defense to prescribe:

The Secretary of Defense adopted the same rules for interlocutory questions and questions of law and reconsiderations as is in the Manual for Courts-Martial (2012). R.M.C. 801(e)(1)(B) reads:

R.M.C. 905(f) states, "On request of any party or sua sponte, the military judge may, prior to authentication of the record of trial, reconsider any ruling, other than one amounting to a finding of not guilty, made by the military judge."

A timely request for reconsideration of an adverse order or ruling renders it "non-final for purposes of appeal as long as the petition is pending." United States v. Ibarra, 502 U.S. 1, 5, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991) (per curiam) (quoting from United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976) (per curiam)). "[C]ourts are given the opportunity to correct their own alleged errors, and allowing them to do so prevents unnecessary burdens from being placed on the [appellate] courts...." Ibarra, 502 U.S. at 5, 112 S.Ct. 4.

In 2008, our Court discussed Ibarra and then dismissed an untimely government appeal because the request for reconsideration was filed more than five days after the military judge struck certain language from a specification. United States v. Khadr, 753 F.Supp.2d 1178, 1180, 1182-83 (USCMCR 2008). In Khadr, our Court explained:

Id. at 1182. Our Court's approach in Khadr of requiring requests for reconsideration to be filed before the five-day time limit expires is consistent with military practice under the Uniform Code of Military Justice (UCMJ) for assessing the impact of untimely requests for reconsideration.2

Computation of the Five-Day Time Limit

We are faced with choosing between a strict, literal application of the five-day rule in a fashion equivalent to that employed under Article 62 of the UCMJ, and the less literal computation of time rule applied by federal circuit courts of appeal when resolving timeliness appellate questions under 18 U.S.C. § 3731.3 Under the latter model, if the deadline for submission falls on a weekend or legal holiday, the final day for filing moves to the next business day.4 Under the circumstances of this case, the choice is dispositive: If we choose the former, the government's deadline was Saturday August 16th, and, absent additional evidence in the record to establish submission of their motion for reconsideration on August 15th, the government appeal would be untimely. If we choose the latter, the government's appeal is timely because the fifth-day deadline fell on a Saturday and, therefore, its Monday submission is timely for purposes of preserving its later appeal.

MCA section 950d was modeled after Article 62, UCMJ, and the 72-hour rule under Article 62 is unforgiving. For example, whether the deadline for submission falls on a weekend or holiday matters not. The government is held to a requirement that it act within 72 hours without modification by any rule of practice. See note 2, supra. This is in accord with the requirement to strictly construe filing time limits in United States appeal statutes,5 and a recognition that trial practice under the UCMJ contemplates and consists of proceedings under circumstances where weekends and holidays are duty days.

Practice and precedent under the Federal Rules of Appellate Procedure, as applied in the Court of Appeals for the District of Columbia Circuit, is somewhat more forgiving than practice under Article 62 of the UCMJ. Compare note 1, supra with Lindsey v. Leuch, 2008 WL 5706005, 2008 U.S.App. LEXIS 23109, unpublished order (D.C.Cir. Oct. 23, 2008) (per curiam); Slinger Drainage, Inc. v. EPA, 237 F.3d 681, 683 (D.C.Cir.2001); United Mine Workers v. Dole, 870 F.2d 662, 665 (D.C.Cir.1989); United States v. Lee, 501 F.2d 890, 891, n. 1 (D.C.Cir.1974). We now turn to the question of how the five-day period is computed under the Federal Rules of Appellate Procedure model.

In interlocutory government appeals in criminal cases tried in U.S. District Courts, "18 U.S.C. § 3731 requires the government to file its notice of appeal within thirty days of when the district court order is rendered." In re Grand Jury Proceedings, 616 F.3d 1186, 1194 (10th Cir.2010); United States v. Cos, 498 F.3d 1115, 1120 (10th Cir.2007). Fed. R.App. P. 4(b) is read in conjunction with 18 U.S.C. § 3731 and in some instances may extend the time limits in § 3731.6 In Lashley v. Ford Motor Company, 518 F.2d 749, 750 (5th Cir.1975), a civil case, the court stated, "The time prescribed for taking an appeal [in U.S. District Court] begins to run on the day following the date of entry of judgment," and where the thirtieth day from entry of judgment "was a Sunday, and [the following day] was Memorial Day, the last day for timely filing of notice of appeal" was the day after Memorial Day. Id. (citing Fed. R.App. P. 4(a) and 6(a)). See also Lindsey, 2008 WL 5706005, 2008 U.S.App. LEXIS 23109 (citing Fed. R.App. P. 26(b)) ("Appellant had 30 days to file a notice of appeal. See Fed. R.App. P. 4(a)(1)(A). Because the 30th day was a Saturday, a timely appeal would have to have been filed by Monday, June 9th.").

Federal Rule of Civil Procedure 26(a) does "not `expand' or `enlarge' our jurisdiction. It does nothing more than provide the court and the parties with a means of determining the beginning and end of a statute of limitations prescribed elsewhere in law." Bartlik v. United States Department of Labor, 62 F.3d 163, 166 (6th Cir. 1995). An appeal "that is due on a Saturday, Sunday, federal holiday, or a day on which the court clerk's office is closed will be timely if filed on the next day the courthouse, or other designated place for filing, is open for business." Id. (citing United Mine Workers, 870 F.2d at 665 (stating "jurisdictional time periods, are to be construed in accordance with Fed. R.App. P. 26(a), excluding final weekend days and holidays unless a specific statutory provision requires otherwise.") (second and third citations omitted)). See also Slinger Drainage, Inc., 237 F.3d at 683 ("[T]he federal rules of procedure can, be relied on for interpreting a statutory time period in the absence of any more statute-specific provisions or indication that Congress did not intend the rules to apply."). Fed. R.App. P. 26(a), Computing Time, states:

The Circuit Rules of the United States Court of Appeals for the District of Columbia Circuit include the preceding provisions of Fed. R.App. P. 26(a) without change. The Court of Appeals for the Armed Forces utilizes the same method as in Fed. R.App. P. 26(a)(1) for counting days to file a petition for grant of review under 10 U.S.C. § 867. See United States v. Cox, 68 M.J. 84 (C.A.A.F.2009) (unpub.) (citing C.A.A.F. R. 34(a) and noting that the 60-day period to file a petition for grant of review "expired on Monday ... the first working day following the expiration of the actual sixty days on [the previous] Saturday."); United States v. Angell, 68 M.J. 79 (C.A.A.F.2009) (unpub.) (same).

In sum, if the deadline for submission falls on a weekend or legal holiday, then the United States may file its notice of appeal on the first following business day. See notes 4 and 6 and accompanying text, supra. We find this an eminently reasonable rule and more in accord with contemplated trial practice under the MCA. See Rule 3.6 of the Military Commissions Trial Judiciary (MCTJ), Military Commissions Rules of Court (May 5, 2014).7 In addition, it places practice of United States appeal time computation in harmony with that of our superior court and inflicts no substantial prejudice to the conduct of military commission trials, the speedy resolution of interlocutory appeals by the United States or the rights of appellees. See, e.g., United States v. Lee, 501 F.2d 890, 891, n. 1 (D.C.Cir.1974); United States v. Pearson, 33 M.J. 777, 779 (N.M.C.M.R.1991) (collecting cases).

In parallel with application of the method employed by our superior court, we therefore adopt the computation of time rule for filing notice of appeal under CMCR Rule of Practice (Apr. 10, 2008) (CMCR Rule) 7.8 R.C.M. 1201(b)(6) authorizes the Chief Judge to "prescribe procedures for appellate review by the United States Court of Military Commission Review." CMCR Rule 7 controls appellate computation of time. CMCR Rule 7 states:

Effect of Timely-Filed Motion for Reconsideration on Deadline to File Interlocutory Appeal

Appellee maintains that the clock stops when the request for reconsideration is filed and then resumes when the reconsideration is decided.9 Appellee did not cite any cases involving government interlocutory appeals of criminal cases to support this theory, and as such, the cases cited do not persuade us to adopt a different rule than enunciated in Ibarra, 502 U.S. at 5, 112 S.Ct. 4.

The chronology in Ibarra is instructive as it establishes the clock is restarted rather than tolled after the reconsideration is decided. In that case: (1) the government had 30 days to file an appeal under Fed. R.App. P. 4(b); (2) the government requested reconsideration 28 days after the underlying order was denied; (3) the reconsideration was denied 20 days after it was filed; and (4) the notice of appeal was filed 27 days after the reconsideration was denied. Ibarra, 502 U.S. at 3, 112 S.Ct. 4. The Ibarra Court found the government's appeal was timely and stated, "appellants are entitled to the full 30 days after a motion to reconsider has been decided." Id. at 4, 112 S.Ct. 4 (citing Dieter, 429 U.S. at 7-8, 97 S.Ct. 18).

Similarly, in United States v. Henderson, 536 F.3d 776 (7th Cir.2008), the government moved the district court to reconsider its order within the 30-day period in 18 U.S.C. § 3731, and then filed its notice of appeal within 30 days of the district court's denial of the motion to reconsider. Id. at 778. The Henderson Court determined that the government appeal was timely. Id. at 779 (citing Ibarra, 502 U.S. at 6-8, 112 S.Ct. 4; Dieter, 429 U.S. at 7-8, 97 S.Ct. 18; United States v. Healy, 376 U.S. 75, 78, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964) ("criminal judgments are nonfinal for purposes of appeal so long as timely rehearing petitions are pending")). "[T]the judgment becomes final, and the clock begins to run, only after the disposition of a timely filed motion to reconsider." Rainey, 757 F.3d at 239 (noting "Healy directly controls and also may be distinguished from Bowles because it does not extend the statutory prescribed filing period, but delineates when the thirty-day period begins to run.") (citing United States v. Cook, 599 F.3d 1208, 1212-13 (10th Cir.2010); Henderson, 536 F.3d at 778-79 & n. 2).

When the military judge granted the request for reconsideration on September 16th, but ruled that the charges dismissed on August 11th would remain dismissed, this restarted the clock, and the government had five days to file a notice of appeal. We hold that 5:00 p.m. on Monday, August 18, 2014, was the deadline for filing the government notice of appeal. Since appellant submitted a motion for reconsideration of the judge's ruling before that deadline, the judge's ruling was non-final, and its notice of appeal filed within three days of the judge's reconsideration decision was timely.

Therefore, it is hereby

ORDERED that appellee's motion to dismiss appellant's interlocutory appeal is DENIED.