Petition for Writ of Certiorari — James P. Baumgartner, Petitioner v. United States
Supreme Court briefNov 13, 2025
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No. ______
IN THE
Supreme Court of the United States
__________
JAMES P. BAUMGARTNER, et al.,
Petitioners,
v.
UNITED STATES,
Respondent.
__________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Armed Forces
__________
PETITION FOR A WRIT OF CERTIORARI
__________
SAMANTHA M. CASTANIEN
Counsel of Record
DWIGHT H. SULLIVAN
JOSHUA L. LOPES
United States Air Force
Appellate Defense Division
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
samantha.castanien.1@us.af.mil
Counsel for Petitioners
i
QUESTION PRESENTED
Since at least 1988, race- and gender-based
discrimination was permissible when selecting courtmartial panel members, the functional equivalent of
jurors. United States v. Crawford, 15 C.M.A. 31
(1964); United States v. Smith, 27 M.J. 242, 249
(C.M.A. 1988). But after Petitioners’ courts-martial,
the Court of Appeals for the Armed Forces held it was
unconstitutional to consider a potential member’s race
for the purpose of selection for or exclusion from a
court-martial panel. United States v. Jeter, 84 M.J. 68,
73 (C.A.A.F. 2023). On direct appeal, both Petitioners
asserted they made a prima facie showing that
impermissible demographic considerations affected
panel selection. But the Air Force Court of Criminal
Appeals denied relief, erroneously interpreting the
facts and law in both cases. When seeking the Court
of Appeals for the Armed Forces’ discretionary review,
Petitioners asserted the lower court’s misapplication
of the law and facts constituted “good cause” to grant
their petitions. But they failed to secure review, even
though the Government presented racial and gender
identifiers to the officer who chose one Petitioner’s
panel, the selection of both Petitioners’ panels
featured a one-for-one swap of minorities, and
military case law permitted race- and gender-based
discrimination when the panels were selected.
This case raises the following question:
Did the Court of Appeals for the Armed Forces
abuse its discretion by failing to grant review “upon
petition of the accused and on good cause shown”
where Petitioners made an unrebutted prima facie
showing that race and gender influenced panel
selection?
ii
PARTIES TO THE PROCEEDING
This Rule 12.4 petition consolidates direct appeals
from two service members convicted by courtsmartial. Petitioners are Technical Sergeant (TSgt)
James P. Baumgartner and Staff Sergeant (SSgt)
Johnathon T. Hagen, United States Air Force.
Respondent in each case is the United States.
CORPORATE DISCLOSURE STATEMENT
No nongovernmental corporations are parties to
this proceeding.
RELATED PROCEEDINGS
Other than the direct appeals that form the basis
for this petition, there are no related proceedings for
the purposes of Rule 14.1(b)(iii).
iii
TABLE OF CONTENTS
QUESTION PRESENTED .................................................. i
PARTIES TO THE PROCEEDING ...................................... ii
CORPORATE DISCLOSURE STATEMENT.......................... ii
RELATED PROCEEDINGS ............................................... ii
TABLE OF CONTENTS ................................................... iii
TABLE OF AUTHORITIES ................................................ v
INTRODUCTION ............................................................. 1
PETITION FOR A WRIT OF CERTIORARI .......................... 3
OPINIONS BELOW ......................................................... 3
JURISDICTION ............................................................... 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS
INVOLVED ..................................................................... 4
STATEMENT OF THE CASE ............................................. 4
A. TSgt Baumgartner’s Panel Composition ......... 5
B. TSgt Baumgartner’s Appeal ............................ 6
C. SSgt Hagen’s Panel Composition .................... 8
D. SSgt Hagen’s Appeal ........................................ 9
REASONS FOR GRANTING THE PETITION ..................... 12
I. Each Petitioner made a showing of good cause, but
was denied review even though a revolutionary
change in the law occurred after his
court-martial. ....................................................... 12
A. Panel selection in the military justice system is
governed by one individual, the convening
authority. ........................................................ 12
iv
B. Following Petitioners’ courts-martial, the
CAAF abrogated a line of cases that permitted
convening authorities to consider race during
panel selection. ............................................... 14
C. When the CAAF extended Batson challenges to
court-martial panel selection by the convening
authority, it also extended the military specific
Batson legal framework. ................................ 16
D. Both TSgt Baumgartner and SSgt Hagen made
similar showings of “good cause” based on Jeter
and Batson’s progeny. .................................... 17
II. The denials demonstrate the CAAF improperly
narrows the meaning of “on good cause shown,”
which this Court can finally review. ................... 23
CONCLUSION .............................................................. 28
APPENDIX
CAAF
Order,
United
States
v.
Baumgartner, No. 25-0135 (June 20,
2025) ...................................................................... 1a
Air Force Court Opinion, United States v.
Baumgartner,
No.
ACM 40413
(February 18, 2025) ............................................... 2a
CAAF Order, United States v. Hagen,
No. 25- 0224 (October 6, 2025) ........................... 55a
Air Force Court Opinion, United States v.
Hagen, No. ACM 40561 (May 28,
2025) .................................................................... 56a
v
TABLE OF AUTHORITIES
Cases
Arizona v. Manypenny,
451 U.S. 232 (1981) ................................................. 2
Batson v. Kentucky,
476 U.S. 79 (1986) ........................... 2, 10, 15, 21, 28
Edwards v. Vannoy,
593 U.S. 255 (2021) ............................................... 23
Flowers v. Mississippi,
588 U.S. 284 (2019) ......................................... 10, 21
Gov’t of V.I. v. Forte,
806 F.2d 73 (3rd Cir. 1986)................................... 23
Hidalgo v. Fagen, Inc.,
206 F.3d 1013 (10th Cir. 2000) ............................ 22
James v. Bowersox,
187 F.3d 866 (8th Cir. 1999) ................................ 23
Johnson v. United States,
520 U.S. 461 (1997) ............................................... 23
J.E.B. v. Ala. ex rel. T.B.,
511 U.S. 127 (1994) ......................................... 15, 16
McPhail v. United States,
1 M.J. 457 (C.M.A. 1976) ...................................... 28
Randolph v. HV,
76 M.J. 27 (C.A.A.F. 2017) ................................... 27
Simpson v. Office of the Chief Judge of
the Circuit Court, 559 F.3d 706 (7th
Cir. 2009) ............................................................... 18
Tagliabue v. Orkin, L.L.C.,
794 F. App’x 389 (5th Cir. 2019) .......................... 18
vi
United States v. Armsbury,
__ M.J. __, No. 25-0233/AR, 2025
CAAF LEXIS 655 (C.A.A.F. Aug. 6,
2025) ..................................................................... 24
United States v. Bess,
80 M.J. 1 (C.A.A.F. 2020) ..................................... 15
United States v. Blackman,
66 F.3d 1572 (11th Cir. 1995) ............................... 16
United States v. Brown,
352 F.3d 654 (2d Cir. 2003) ................................. 22
United States v. Byrd,
53 M.J. 35 (C.A.A.F. 2000) .................................... 27
United States v. Calvillomagana,
__ M.J. __, No. 25-0142/AR, 2025
CAAF LEXIS 315 (C.A.A.F. Apr. 22,
2025) ...................................................................... 25
United States v. Caprio,
12 M.J. 30 (C.M.A. 1981) ...................................... 24
United States v. Crawford,
15 C.M.A. 31 (1964) ................................. i, 1, 14, 28
United States v. Davis,
__ M.J. ___, No. 24-0152/AR, 2024
CAAF LEXIS 314 (C.A.A.F. May 14,
2024) ...................................................................... 25
United States v. Deremer,
__ M.J. __, No. 25-0158/MC, 2025
CAAF LEXIS 350 (C.A.A.F. May 5,
2025) ...................................................................... 24
United States v. Downum,
__ M.J. ___, No. 24-0156/AR, 2024
CAAF LEXIS 315 (C.A.A.F. May 14,
2024) ...................................................................... 25
vii
United States v. Elliott,
89 F.3d 1360 (8th Cir. 1996) ................................ 16
United States v. Ellis,
__ M.J. __, No. 25-0197/AR, 2025
CAAF LEXIS 481 (C.A.A.F. June 23,
2025) ...................................................................... 24
United States v. Flanner,
84 M.J. 303 (C.A.A.F. 2024) .................................... 25
United States v. Ford,
__ M.J. __, No. 25-0143/AR, 2025
CAAF LEXIS 306 (C.A.A.F. Apr. 22,
2025) ..................................................................... 24
United States v. Harborth,
84 M.J. 344 (C.A.A.F. 2024) .................................... 25
United States v. Harcrow,
66 M.J. 154 (C.A.A.F. 2008) .................................. 23
United States v. Hennessy,
85 M.J. 396 (C.A.A.F. 2025) ................................. 25
United States v. Hunt,
__ M.J. __, No. 25-0257/AF, 2025
CAAF LEXIS 734 (C.A.A.F. Sep. 2,
2025) ...................................................................... 24
United States v. Hurn,
55 M.J. 446 (C.A.A.F. 2001) ................................. 17
United States v. Ixcolgonzalez,
__ M.J. __, No. 25-0243/MC, 2025
CAAF LEXIS 685 (C.A.A.F. Aug. 19,
2025) ...................................................................... 24
United States v. Jeter,
84 M.J. 68 (C.A.A.F. 2023) ... i, 2, 5, 10-11, 15-18, 28
viii
United States v. Jones,
__ M.J. __, No. 25-0141/AR, 2025
CAAF LEXIS 310 (C.A.A.F. Apr. 22,
2025) ...................................................................... 24
United States v. Kaixiang Zhu,
854 F.3d 247 (4th Cir. 2017) ................................ 18
United States v. Kershaw,
__ M.J. __, No. 25-0117/AF, 2025
CAAF LEXIS 408 (C.A.A.F. May 27,
2025) ...................................................................... 24
United States v. Loving,
517 U.S. 748 (1996) ................................................. 7
United States v. Loving,
41 M.J. 213 (C.A.A.F. 1994) .................................... 7
United States v. Malone,
__ M.J. __, No. 25-0140/AR, 2025
CAAF LEXIS 299 (C.A.A.F. Apr. 21,
2025) ..................................................................... 25
United States v. Mencias,
83 M.J. 723 (N-M. Ct. Crim. App.
2023) ...................................................................... 12
United States v. Mendoza,
__ M.J. __, No. 25-0244/AR, 2025
CAAF LEXIS 690 (C.A.A.F. Aug. 20,
2025) ...................................................................... 24
United States v. Moore,
85 M.J. 394 (C.A.A.F. 2025) ................................. 25
United States v. Patterson,
85 M.J. 320 (C.A.A.F. 2025) ................................. 25
United States v. Patterson,
No. ACM 40426, 2024 CCA LEXIS 399
(A.F. Ct. Crim. App. Sep. 27, 2024) ...................... 10
ix
United States v. Riesbeck,
77 M.J. 154 (C.A.A.F. 2018) ................................. 15
United States v. Rocha,
__ M.J. __, No. 25-0157/AF, 2025
CAAF LEXIS 352 (C.A.A.F. May 5,
2025) ...................................................................... 24
United States v. Rodriguez,
67 M.J. 110 (C.A.A.F. 2009) ........................... 25, 27
United States v. Rorie,
58 M.J. 399 (C.A.A.F. 2003) ........................... 26, 27
United States v. Serjak,
85 M.J. 407 (C.A.A.F. 2025) ..................................... 25
United States v. Smith,
27 M.J. 242 (C.M.A. 1988) ................. i, 1, 13-15, 28
United States v. Stafford,
136 F.3d 1109 (7th Cir. 1998) ............................... 22
United States v. Thomas,
__ M.J. __, No. 24-0147/AR, 2025
CAAF LEXIS 533 (C.A.A.F. July 7,
2025) ...................................................................... 16
United States v. Tovarchavez,
78 M.J. 458 (C.A.A.F. 2019) ................................. 23
Statutes and Constitutional Provisions
10 U.S.C. § 816 .......................................................... 13
10 U.S.C. § 822 .......................................................... 12
10 U.S.C. § 825 ................................................. 4, 12-14
10 U.S.C. § 841 .......................................................... 13
10 U.S.C. § 867 ....................................... 2, 4, 24-26, 29
x
28 U.S.C. § 1259 ........................................ 1, 3-4, 28-29
28 U.S.C. § 1291 .................................................... 2, 25
28 U.S.C. § 1292 ........................................................ 25
National Defense Authorization Act for
Fiscal Year 2024, Pub. L. No. 118-31,
§ 533, 137 Stat. 136 (2023) ..................................... 1
National Defense Authorization Act for
Fiscal Year 1995, Pub. L. No. 103-337,
§ 924, 108 Stat. 2663 (1994).................................... 1
U.S. CONST. amend. V ................................................. 4
Uniform Code of Military Justice, Pub. L.
No. 81-506, 64 Stat. 107 (1950) ............................ 26
Other Authorities
Brief for National Institute of Military
Justice as Amicus Curiae Supporting
Petitioner, McMurrin v. United States,
574 U.S. 936 (2014) (mem.) ................................... 29
C.A.A.F. R. 21 ..................................................... 27, 28
Eugene Fidell, Brenner M. Fissell &
Philip D. Cave, Equal Supreme Court
Access For Military Personnel: An
Overdue Reform, 131 YALE L.J. F. 1
(2021) ............................................................... 27, 29
Good cause shown, BLACK’S LAW
DICTIONARY (12th ed. 2024) ................................. 27
Legal Services, Dep’t of the Army,
Pamphlet No. 27-173, Trial Procedure
247 (1992) .............................................................. 26
xi
Prima facie, BLACK’S LAW DICTIONARY
(12th ed. 2024). ...................................................... 18
Rule for Courts-Martial 103, Manual
for Courts-Martial, United States
(2019 ed.) ............................................................... 12
Rule for Courts-Martial 911, Manual
for Courts-Martial, United States
(2019 ed.) ............................................................... 13
S. REP. NO. 98-53 (1983). .................................... 26, 27
1
INTRODUCTION
When Petitioners were tried by general courtsmartial, convening authorities were encouraged to
consider race and gender when constituting a courtmartial panel, the functional equivalent of a jury.
United States v. Crawford, 15 C.M.A. 31 (1964);
United States v. Smith, 27 M.J. 242, 249 (C.M.A.
1988).1 It was only after Petitioners’ convictions that
the Court of Appeals for the Armed Forces (CAAF)
overturned fifty years of precedent in the military
justice system by holding that race cannot be used as
a factor in court-martial member selection, even for
the purpose of promoting diversity. In doing so, the
CAAF provided no clarity on what legal standard to
use. Both Petitioners asserted on appeal that race,
gender, or both played a role in panel selection, but
the legal standards the Air Force Court of Criminal
Appeals (AFCCA) applied to deny relief conflicted
with the governing military case law and its necessary
implications. Both Petitioners requested that the
CAAF grant review to provide clarity on the
applicable legal standard, which would have
demonstrated the lower court’s erroneous view of the
law. The CAAF denied review.
Only since December 22, 2024, has this Court had
jurisdiction to review cases that the CAAF did not.
National Defense Authorization Act for Fiscal Year
2024, Pub. L. No. 118-31, § 533, 137 Stat. 136, 261
(2023) (codified at 28 U.S.C. § 1259, effective one year
1 The Court of Military Appeals (C.M.A.) is the same court as the
Court of Appeals for the Armed Forces. A 1994 statute changed
the court’s name. National Defense Authorization Act for Fiscal
Year 1995, Pub. L. No. 103-337, § 924, 108 Stat. 2663, 2831
(1994).
2
from date of enactment). Petitioners recognize the
prejudicial error in their cases is unique to the
military justice system. The Court of Appeals for the
Armed Forces (CAAF) ostensibly is the only federal
appellate court to extend Batson v. Kentucky, 476 U.S.
79 (1986), outside of peremptory challenges. United
States v. Jeter, 84 M.J. 68, 80 (C.A.A.F. 2023) (Maggs,
J., dissenting). Only in the military justice system,
and pursuant to Batson, is reversal required where an
accused makes an unrebutted prima facie showing
that race played a role in initial court-martial panel
selection. Jeter, 84 M.J. at 70.
Yet also only in the military justice system is there
an appellate court with discretionary authority to
deny review of cases. No other United States Court of
Appeals comparable to the CAAF has similar
discretionary review. See 28 U.S.C. § 1291 (“The
courts of appeals . . . shall have jurisdiction from all
final decisions of the district courts . . . .”); see also
Arizona v. Manypenny, 451 U.S. 232, 244-45 (1981)
(discussing 18 U.S.C. § 1291, its development, and
application to criminal and civil proceedings). Where
both Petitioners showed “good cause” to grant their
petitions for review, the CAAF violated its statutory
mandate to review the cases.
Petitioners do not ask this Court to review the
underlying panel member selection question that the
CAAF declined to review. Rather, Petitioners ask this
Court to either grant plenary review to consider the
meaning of “good cause shown” for purposes of 10
U.S.C. § 867 or, in the alternative, to grant certiorari,
vacate the CAAF’s orders denying review, and remand
Petitioners’ cases to the CAAF to consider the panel
member selection issue.
3
PETITION FOR A WRIT OF CERTIORARI
TSgt James P. Baumgartner and SSgt Johnathon
T. Hagen respectfully petition for a writ of certiorari
to review the decisions of the United States Court of
Appeals for the Armed Forces (CAAF) denying review
of the Air Force Court of Criminal Appeals’ (AFCCA)
decisions in their cases.
OPINIONS BELOW
In TSgt Baumgartner’s case, the AFCCA’s decision
is unreported. It is available at 2025 CCA LEXIS 95,
2025 WL 689098, and is reproduced at pages 2a-54a.
The CAAF’s decision is pending publication in West’s
Military Justice Reporter. It is available at 2025 CAAF
LEXIS 478 and reproduced at page 1a.
In SSgt Hagen’s case, the AFCCA’s decision is
unreported. It is available at 2025 CCA LEXIS 234,
2025 WL 1517966, and is reproduced at pages 56a81a. The CAAF’s decision is pending publication in
West’s Military Justice Reporter. It is available at 2025
CAAF LEXIS 841 and reproduced at page 55a.
JURISDICTION
The CAAF declined to grant review of the panel
member selection question raised in both cases. In
TSgt Baumgartner’s case, the CAAF issued its order
denying review on June 20, 2025. The Chief Justice
extended the time for filing a petition for writ of
certiorari to, and including, November 17, 2025. In
SSgt Hagen’s case, CAAF issued its order denying
review on October 6, 2025. No extension request was
filed in SSgt Hagen’s case. For both cases, this Court’s
jurisdiction rests on 28 U.S.C. § 1259(3).
4
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment, in pertinent part, provides:
“No person . . . shall . . . be deprived of life, liberty, or
property, without due process of law.” U.S. CONST.
amend. V.
Article 25, UCMJ, 10 U.S.C. § 825, in pertinent
part, provides: “When convening a court-martial, the
convening authority shall detail as members thereof
such members of the armed forces as, in his opinion,
are best qualified for the duty by reason of age,
education, training, experience, length of service, and
judicial temperament.”
Article 67, UCMJ, 10 U.S.C. § 867, provides, in
pertinent part, that “[t]he [CAAF] shall review the
record in . . . all cases reviewed by a Court of Criminal
Appeals in which, upon petition of the accused and on
good cause shown, the [CAAF] has granted a review.”
Section 1259 of Title 28 of the U.S. Code provides,
in pertinent part, that “[d]ecisions of the [CAAF] may
be reviewed by the Supreme Court by writ of certiorari
in . . . [c]ases in which the [CAAF] granted or refused
to grant a petition for review under section 867(a)(3)
of title 10.”
STATEMENT OF THE CASE
At their general courts-martial, both TSgt
Baumgartner and SSgt Hagen elected to be tried by a
panel of service members. Pet. 3a, 57a. At trial,
neither TSgt Baumgartner nor SSgt Hagen raised any
objections to how the panel members were selected by
the convening authority. Pet. 6a, 62a. But both service
members were court-martialed and convicted before
September 25, 2023, the day CAAF issued its decision
5
in United States v. Jeter, 84 M.J. 68 (C.A.A.F. 2023).
Pet. 2a, 56a. Jeter held that “whenever an accused
makes a prima facie showing that race played a role
in the panel selection process at his court-martial, a
presumption will arise that the panel was not properly
constituted.” Jeter, 84 M.J. at 70. Jeter’s holding
abrogated decades of military jurisprudence,
prompting both TSgt Baumgartner and SSgt Hagen to
assert on direct appeal to the AFCCA, pursuant to
Article 66, UCMJ, 10 U.S.C. § 866, that their courtmartial panels were not properly constituted because
their respective convening authorities considered
race, gender, or both in contravention of new case law.
Pet. 10a, 65a.
A. TSgt Baumgartner’s Panel Composition
On January 19, 2022, the convening authority
selected fifteen out of twenty officers presented to him
for TSgt Baumgartner’s court-martial. Def. App. A at
1. Of the fifteen officers selected, nine were men and
six were women. Id.; Def. App. B at 25-27, 31-33, 3756. Only one officer member identified as “African
American” on the data sheets: Captain (Capt) AE. Def.
App. B at 48. Capt AE was a woman. Id.
Following the convening authority’s initial
member selection, TSgt Baumgartner elected to be
tried by an all-officer panel. R. at 19. Six enlisted
members were excused. Special Order A-14, Sep. 23,
2022. Additionally, three of the six female officers
originally selected were excused along with seven of
the original nine male officers. Id. One of the excused
women was Capt AE. Id.
On September 23, 2022, the convening authority
selected eleven new officers as potential members. Id.
The record does not contain evidence of how many
6
men and women were available for selection when the
convening authority selected these replacement
members. In replacing the excused officer members,
though, the convening authority selected three women
and eight men. Id.; Def. App. B at 1-22. Women were
replaced one-for-one. Special Order A-14, Sep. 23,
2022. Of the newly selected women, one identified on
her data sheet as “African American”: Major (Maj) JE.
Def. App. B at 17. Major JE had the same last name,
the same gender, and identified as the same race as
Capt AE. Compare Def. App. B at 17, with Def. App. B
at 48.
B. TSgt Baumgartner’s Appeal
On appeal, TSgt Baumgartner argued that the
convening authority considered race and gender when
selecting his panel because of (1) the one-for-one swap
of women, including women identifying as African
American, (2) the presence of racial and gender
identifiers in front of the convening authority, and (3)
the fact that at the time of panel selection, Crawford
and its progeny were still good law. Br. on Behalf of
Appellant at 60-62, United States v. Baumgartner, No.
ACM 40413, 2025 CCA LEXIS 95 (A.F. Ct. Crim. App.
Feb. 18, 2025).
In response, rather than submitting any
documentation from the convening authority or his
legal advisor to explain why a one-for-one swap
occurred, “the Government contend[ed] that the raw
statistical probability of the convening authority
selecting females for the second convening order
venire was 31% (9 of 29 questionnaires)—asserting ‘if
the convening order blindly picked officers, he was
likely to select [3] female officers.’” Pet. 11a (alteration
in original). But, “statistically,” there were at least
7
forty-one members to consider, not twenty-nine,
because there were thirty individuals to originally
choose from and at least eleven more added to the
overall pool. Def. App. A at 1; Special Order A-14, Sep.
23, 2022.
The AFCCA did not perform any statistical
analysis itself. Rather, the AFCCA adopted the
Government’s reasoning and asserted that “we have a
situation where statistically, the raw likelihood of
selecting female panel members aligned nearly
precisely with the actual panel venire selections by
the convening authority.” Pet. 14a. This, however, was
incorrect. Applying its mathematically erroneous
conclusion, the AFCCA determined that “an innocent
explanation [was] facially plausible” as to how and
why the convening authority swapped women, and
Black women, one-for-one without consideration of
race and gender. Pet. 13a.
Additionally, the AFCCA found TSgt Baumgartner
did not make a prima facie showing on appeal because
United States v. Loving, 41 M.J. 213, 285 (C.A.A.F.
1994), aff’d on other grounds, 517 U.S. 748 (1996),
held the court will not presume an improper motive
from the existence of racial and gender identifiers on
data sheets. Pet. 13a. Finally, the AFCCA held that to
make a prima facie showing, TSgt Baumgartner had
to show “a similar pattern of possible discrimination
in [other] court[s]-martial involving this convening
authority.” Pet. 13a. Altogether, the AFCCA
determined, under plain error review, TSgt
Baumgartner failed to demonstrate clear or obvious
error. Pet. 14a.
TSgt Baumgartner petitioned the CAAF to review
the AFCCA’s decision, asserting “good cause shown”
8
based on (1) a split between the Coast Guard Court of
Criminal Appeals and the AFCCA over whether Jeter
should be applied to gender; (2) Loving’s abrogation
based on Jeter’s consideration of racial identifiers on
court-martial panel member datasheets to establish a
prima facie showing; and (3) AFCCA’s improper
heightening of the standard for a prima facie showing
in a way that conflicts with this Court’s Batson
progeny. Supp. to the Pet. for Grant of Review at 8-9,
United States v. Baumgartner, No. 25-0135/AF, 2025
CAAF LEXIS 478 (C.A.A.F. June 20, 2025). He also
demonstrated that he made an unrebutted prima facie
showing that race and gender entered the panel
selection process where there was a one-for-one swap
of women and women identifying as “African
American” on the panel. Id. at 18-24.
The CAAF denied review. Pet. 1a.
C. SSgt Hagen’s Panel Composition
On July 21, 2022, the convening authority in SSgt
Hagen’s case received a list of thirty-four “Proposed
Court Members” for court-martial panel selection.
Forwarding of Court-Martial Charges – U.S. v. SSgt
Johnathon T. Hagen, July 21, 2022, at 2. Eight had
traditionally female first names while twenty-six had
traditionally male first names. Id.
The convening authority selected twenty-one
service members to constitute the court-martial panel.
Special Order A-41, July 25, 2022. In doing so, he
selected all but one of the proposed members with
traditionally female first names. Id. Thus, of the
twenty-one members whom the convening authority
selected, seven had traditionally female first names
and fourteen had traditionally male first names. Id.
9
On July 21, 2023, the same convening authority
amended the convening order to remove eighteen
members from the original court-martial panel—six
with traditionally female first names and twelve with
traditionally male first names. Special Order A-47,
July 21, 2023. In replacing those members, the
convening
authority
selected
eighteen
new
members—six with traditionally female first names
and twelve with traditionally male first names. Id.
Following that amendment, the court-martial panel
again consisted of seven members with traditionally
female first names and fourteen with traditionally
male first names.
D. SSgt Hagen’s Appeal
Before the AFCCA, SSgt Hagen argued that “[t]he
convening authority’s selection of the members
demonstrates a prima facie showing that gender was
impermissibly considered, giving rise to a
presumption that the panel was not properly
constituted.” Appellant’s Br. at 11, United States v.
Hagen, No. ACM 40561, 2025 CCA LEXIS 234 (A.F.
Ct. Crim. App. May 28, 2025) (emphasis omitted).
The Government, once again, elected not to offer
any evidence of the convening authority’s intent to
explain the one-for-one swap of women during panel
selection. Instead, the Government advanced three
arguments to dispel the apparent consideration of
gender in the detailing process. Answer to
Assignments of Error at 14-19, United States v.
Hagen, No. ACM 40561, 2025 CCA LEXIS 234 (A.F.
Ct. Crim. App. May 28, 2025). First, the Government
asserted a presumption of regularity—even though
what was regular at the time of panel selection under
Crawford and its progeny was now unlawful following
10
Jeter. Id. at 14-15. Second, the Government focused on
how “excluding” Black service members was the
linchpin of Jeter when Jeter goes much further: Jeter
condemns any consideration of race, whether for
purposes of inclusion or exclusion on the panel.
Compare id. at 17-18, with Jeter, 84 M.J. at 73.
Finally, the Government asserted the AFCCA had
previously required a showing of discrimination in
other cases by the same convening authority. Answer
to Assignments of Error at 18-19, United States v.
Hagen, No. ACM 40561, 2025 CCA LEXIS 234 (A.F.
Ct. Crim. App. May 28, 2025) (citing United States v.
Patterson, No. ACM 40426, 2024 CCA LEXIS 399, at
*22 (A.F. Ct. Crim. App. Sep. 27, 2024), aff’d on other
grounds, __ M.J. __, No. 25-0073/AF, 2025 CAAF
LEXIS 548 (C.A.A.F. July 14, 2025)). While it is true
the AFCCA had done so, such a requirement
contravenes Batson and its progeny. Flowers v.
Mississippi, 588 U.S. 284, 298 (2019) (citing Batson,
476 U.S. at 96) (“[A] criminal defendant could show
‘purposeful discrimination in selection of the petit jury
solely on evidence concerning the prosecutor’s exercise
of peremptory challenges at the defendant’s trial.’”).
In ruling against SSgt Hagen, the AFCCA made
similar errors as in TSgt Baumgartner’s case. It made
erroneous findings of fact, which incorrectly skewed
the distribution of men and women on the panel.
Supp. to the Pet. for Grant of Review at 20, United
States v. Hagen, No. 25-0224/AF, 2025 CAAF LEXIS
841 (C.A.A.F. Oct. 6, 2025). Then the AFCCA
concocted an argument neither party made to assert
that accepting the defense’s argument would mean
that a convening authority would never be able to
know a panel member’s name because that could
reveal gender. Pet. 67a. “Practically, such a limitation
11
upon convening authorities could prevent their ability
to properly apply the criteria mandated for
consideration by Article 25, UCMJ.” Id. Specifically,
the AFCCA felt a convening authority would not be
able “to determine whether a potential court member,
‘in his opinion, [is] best qualified for the duty by
reason of . . . judicial temperament’ if he or she cannot
know who they are evaluating.” Id. Contrary to the
AFCCA’s reductio ad absurdum, SSgt Hagen’s
proposed cure was not to mask potential members’
names during the panel selection process. Rather, the
defense suggested the AFCCA tell convening
authorities that they may no longer select courtmartial members with the goal of promoting (or
thwarting) the presence of women on the panel. Jeter,
84 M.J. at 73 (issuing such a prohibition in the context
of race).
SSgt Hagen appealed this issue to the CAAF,
asserting “good cause shown” based on (1) the same
split between the Coast Guard Court of Criminal
Appeals and the AFCCA that TSgt Baumgartner
raised; (2) the AFCCA’s abuse of its discretion by
finding facts not supported by the record; and (3) the
AFCCA’s creation of and reliance on the strawman
argument that misunderstood SSgt Hagen’s
argument and the law. Supp. to the Pet. for Grant of
Review at 8, 20-22, United States v. Hagen, No. 250224/AF, 2025 CAAF LEXIS 841 (C.A.A.F. Oct. 6,
2025). He also demonstrated that he made an
unrebutted prima facie showing gender entered the
panel selection process where there was an initial
highly disproportionate selection of women from
among the original panel nominees followed by a onefor-one swap of women on the panel. Id. at 12-19.
The CAAF denied review. Pet. 55a.
12
REASONS FOR GRANTING THE PETITION
I. Each Petitioner made a showing of good
cause, but was denied review even though a
revolutionary change in the law occurred
after his court-martial.
TSgt Baumgartner and SSgt Hagen showed “good
cause” for the CAAF to grant review on the issue of
improper panel member selection based on race,
gender, or both. But to be fully appreciated, both
demonstrations of good cause first require a deep
understanding of the military justice system’s unique
court-martial member selection process.
A. Panel selection in the military justice
system is governed by one individual, the
convening authority.
The military justice system diverges from the
civilian justice system in how the venire is picked. The
civilian jury is “derived from a representative,
randomly selected cross-section of the population”
with numerous peremptory challenges as a means of
“selecting” the final jury. United States v. Mencias, 83
M.J. 723, 729 (N-M. Ct. Crim. App. 2023). In contrast,
the military justice system’s equivalent of the jury
venire, known as the court-martial panel, is selected
by the convening authority. 10 U.S.C. § 825(e)(2). The
“convening authority” is generally “a commissioned
officer in command” or that officer’s successors in
command. Rule for Courts-Martial 103(6), Manual for
Courts-Martial, United States (2019 ed.) (MCM).2
2 Six high-level Executive Branch officials who exercise civilian
control over the military—including the President—are also
convening authorities. Art. 22, UCMJ, 10 U.S.C. § 822(a)(1), (2),
(4).
13
Convening authorities generally select court-martial
panel members from among the personnel in their
commands. Members of the panel are subject to causal
challenge. Art. 41(a), UCMJ, 10 U.S.C. § 841(a). Each
party has the right to exercise one peremptory
challenge. Art. 41(b)(1), UCMJ, 10 U.S.C. § 841(b)(1).
In non-capital general courts-martial, the final panel
consists of eight members; in special courts-martial, a
panel has four members. Art. 16(b)(1), (c)(1), UCMJ,
10 U.S.C. § 816(b)(1), (c)(1). The composition of the
panel can also be influenced by an enlisted accused’s
election to have at least one-third of the panel be
enlisted members or to have the entire panel consist
of commissioned officers. Art. 25(c)(2), UCMJ, 10
U.S.C. § 825(c). If any excess members remain after
the challenge process, a randomized selection process
is used to shrink the venire to the required number.
Rule for Courts-Martial 911, MCM (2024 ed.).
The court-martial panel selection process typically
starts with the staff judge advocate’s legal office
requesting possible court-martial panel members
from various subordinate commands. Smith, 27 M.J.
at 243-44. For example, for a court-martial convened
by a division’s commanding general, nominees would
be sought from the units that comprise that division.
The subordinate commanders’ nominees are compiled
into a list and sent to the convening authority for
selection at the time the court-martial is convened
(i.e., created). Id. If replacement members are needed
due to mission requirements or personnel’s
unavailability for other reasons, the legal office will
once again request and compile names for an
additional selection process. Id. Although from the
late 1980s, the Court of Military Appeals’ decision in
United States v. Smith details this logistical process
14
well, and its description of the preliminary steps in
court-martial member selection remains relatively
accurate to-date. Id.
In selecting the court-martial panel from the list
provided by the legal office, the convening authority
uses the criteria prescribed by Article 25, UCMJ, 10
U.S.C. § 825, which include “age, education, training,
experience, length of service, and judicial
temperament.” Neither race nor gender are listed in
Article 25, UCMJ. Nevertheless, for almost sixty
years, the military justice system permitted some
form of race-based discrimination during panel
selection. Crawford, 15 C.M.A. 31. And starting in
1988, military case law expressly permitted some
form of race- and gender-based discrimination to
ensure “representativeness” during panel selection.
Smith, 27 at 248-49.
B. Following Petitioners’ courts-martial, the
CAAF abrogated a line of cases that
permitted convening authorities to
consider race during panel selection.
Before 2023, convening authorities could consider
race when selecting a panel when it was “in favor of,
not against, an accused.” Crawford, 15 C.M.A. at 41.
Race-based panel selection was expanded twenty
years later when the Court of Military Appeals
determined that “a commander is free to require
representativeness in his court-martial panels and to
insist that no important segment of the military
community—such as blacks, Hispanics, or women—be
excluded from service on court-martial panels.”
Smith, 27 M.J. at 249 (emphasis added). Not only
could race be used to make a panel more
representative of the accused’s race, but a convening
15
authority could take race and gender into account in
selecting court members “to assure that the courtmartial panel is representative of the military
population.” Id. This was considered a “benign” motive
that would not cast doubt on the panel selection
process because it was driven by a desire to include,
rather than exclude, qualified individuals. United
States v. Riesbeck, 77 M.J. 154, 162 (C.A.A.F. 2018);
United States v. Bess, 80 M.J. 1, 7 n.8 (C.A.A.F. 2020).
At the time of petitioners’ trials, both race and gender
could be considered to select a panel.
But in 2023, the CAAF overruled Crawford,
relying on Batson: “A person’s race simply ‘is
unrelated to his fitness as a juror.’” Jeter, 84 M.J. at
73 (quoting Batson, 476 U.S. at 87). The CAAF
unequivocally held, “It is impermissible to exclude or
intentionally include prospective members based on
their race.” Id. “Just as in the civilian context, a
convening authority may not draw up a members
panel pursuant to the neutral criteria of Article 25,
UCMJ, only to have discriminated at other stages of
the process.” Id. at 74.
While Jeter did not consider the question of using
gender as a basis for panel member fitness, given
Crawford’s abrogation by Batson, Smith is similarly
abrogated by J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127
(1994). And here, the AFCCA correctly assumed Jeter
extended to gender. Pet. 12a, 65a. Neither race nor
gender are lawful criteria for court member selection,
whether used to intentionally “include” or “exclude.”
“The exclusion of even one juror for impermissible
reasons harms that juror and undermines public
confidence in the fairness of the system.” J.E.B., 511
U.S. at 142 n.13. Today, although the CAAF has yet
to address use of gender as a member-selection
16
criterion post-Jeter, the correct conclusion is there is
no difference between using race or gender during
panel selection: both are impermissible. Compare
J.E.B., 511 U.S. at 128 (relying on Batson to conclude
that gender, like race, cannot be considered in jury
selection), with Jeter, 84 M.J. at 69 (relying on
Batson).
C. When the CAAF extended Batson
challenges
to
court-martial
panel
selection by the convening authority, it
also extended the military-specific Batson
legal framework.
In abrogating Crawford, the CAAF extended
Batson beyond peremptory challenges. See Jeter, 84
M.J. at 80 (Maggs, J., dissenting). This makes the
military justice system unique, as the CAAF is
apparently the only federal appellate court to apply
Batson beyond peremptory challenges. Id. (citing
United States v. Elliott, 89 F.3d 1360, 1364-65 (8th
Cir. 1996) (rejecting the application of Batson to forcause challenges); United States v. Blackman, 66 F.3d
1572, 1575 n.3 (11th Cir. 1995) (same)). But in
expanding Batson’s reach, the CAAF did not
articulate a test, simply stating, “Whenever an
accused makes a prima facie showing that race played
a role in the panel selection process at his courtmartial, a presumption will arise that the panel was
not properly constituted. The government may then
seek to rebut that presumption.” Jeter, 84 M.J. at 70.
In the military justice system, the CAAF has
modified this Court’s Batson framework due to the
“structural differences between courts-martial and
civilian trials.” United States v. Thomas, __ M.J. __,
No. 24-0147/AR, 2025 CAAF LEXIS 533, at *9
17
(C.A.A.F. July 7, 2025). The modified standard
replaces the first step of the Batson analysis with a
per se rule: “upon timely objection to a peremptory
challenge, a prima facie case of discrimination is
established.” United States v. Hurn, 55 M.J. 446, 448
(C.A.A.F. 2001). But Jeter appears to require more
than a “timely objection” to establish a prima facie
showing as evidenced by the CAAF’s own analysis. In
Jeter, the CAAF found a prima facie showing during
panel selection through “the racial identifier in the
questionnaires, other evidence before the court of
criminal appeals, and importantly, the command’s
understandable belief that the Crawford case—which
not only authorized but essentially encouraged the
consideration of race—was still good law.” Jeter, 84
M.J. at 74.
Through expanding Batson, the CAAF has created
a conflicting standard in its own jurisdiction that is
already an outlier from the other federal circuits. For
Petitioners, this allowed the AFCCA to distort the
CAAF’s and this Court’s Batson precedent. The
CAAF’s exercise of its ability to summarily deny
review in Petitioners’ cases perpetuated the unclear
Batson standard for this unique, military-specific
analysis. But the CAAF abused its discretion to deny
review because Petitioners showed good cause—an
error that materially prejudiced their substantial
rights.
D. Both TSgt Baumgartner and SSgt Hagen
made similar showings of “good cause”
based on Jeter and Batson’s progeny.
Petitioners raised similar arguments to the CAAF.
Both Petitioners argued they made an unrebutted
prima facie showing of gender-based discrimination in
18
panel selection, and TSgt Baumgartner made a prima
facie showing of race-based selection as well. Prima
facie means “[s]ufficient to establish a fact or raise a
presumption unless disproved or rebutted; based on
what seems to be true on first examination, even
though it may later be proved to be untrue.” Prima
facie, BLACK’S LAW DICTIONARY (12th ed. 2024). A
prima facie standard establishes a “relatively low . . .
hurdle.” United States v. Kaixiang Zhu, 854 F.3d 247,
257 (4th Cir. 2017) (per curiam); accord, e.g., Simpson
v. Office of the Chief Judge of the Circuit Court, 559
F.3d 706, 720 (7th Cir. 2009) (referring to “the low
prima facie hurdle”); Tagliabue v. Orkin, L.L.C., 794
F. App’x 389, 394 (5th Cir. 2019) (referring to “the
relatively low hurdle of establishing a prima facie
case”).
Petitioners’ prima facie showings match that in
Jeter. In Jeter, the relevant circumstances making a
prima facie showing included “the racial identifier in
the questionnaires, other evidence before the court of
criminal appeals, and importantly, the command’s
understandable belief that the Crawford case—which
not only authorized but essentially encouraged the
consideration of race—was still good law.” Jeter, 84
M.J. at 74. First, as in Jeter, TSgt Baumgartner
demonstrated racial and gender identifiers existed on
court-member data sheets. Pet. 12a; Def. App. B. For
SSgt Hagen, the names of the members alone strongly
indicated, if not proved, the gender of each member.
Special Order A-41, July 25, 2022; Special Order A-47,
July 21, 2023. Therefore, as in Jeter, race and gender
were put before the convening authority for possible
consideration. Second, for both Petitioners’ courtsmartial, Crawford was still good law at the time of
panel selection—same as in Jeter. Finally, “other
19
evidence” before the AFCCA existed; specifically, in
both cases, Petitioners identified a one-for-one swap of
women on the panel.
For SSgt Hagen, the convening authority first
selected women at a disproportionally higher rate
than men and then replaced them one-for-one. Of the
members available for selection, the convening
authority selected twenty-one out of thirty-four
individuals. Special Order A-41, July 25, 2022. Of
those thirty-four, eight were women. Id. Seven out of
eight women were selected, whereas thirteen out of
twenty-six men were selected. Id. The odds of this
distribution happening by chance are only 8.3%
(calculated based on hypergeometric distribution of a
population size of 34 with 8 success and a sample size
of 21 with 7 successes). When eighteen of those
originally selected service members were removed, six
were women. Special Order A-47, July 21, 2023. In
replacing those eighteen members of the panel, the
convening authority picked exactly six more women.
Id. Thus, there was a one-for-one replacement of
women on the panel.
For TSgt Baumgartner, the convening authority
made a one-for-one swap of women and women
identifying as “African American.” Initially, the
convening authority selected fifteen out of twenty
officers, nine men and six women. Def. App. A at 1.
One officer identified as “African American” on the
data sheets: Capt AE. Def. App. B at 48. Capt AE was
a woman. Id. When ten officer members required
replacement, three were women, including Capt AE.
Special Order A-14, Sep. 23, 2022. In replacing those
ten members, the convening authority picked exactly
three more women and one of the women identified as
“African American” on her data sheet: Major (Maj) JE.
20
Id.; Def. App. B at 17. Maj JE had the same last name,
the same sex, and identified as the same race as Capt
JE. Compare Def. App. B at 17, with Def. App. B at 48.
Thus, there was a one-for-one replacement of women
and individuals identifying as “African American” on
the panel.
“What seems to be true on first examination” is
that race, gender, or both entered the panel selection
process in both courts-martial. These one-for-one
swaps, coupled with the fact race, gender, or both were
put before the convening authorities when the legal
landscape permitted, if not encouraged, them to select
panel members with race and gender in mind,
establishes a prima facie showing.
This presumption that race, gender, or both
entered panel selection went unrebutted. During both
appeals, the Government did not offer affidavits from
the convening authorities or anyone else who assisted
in the panel member selection process to rebut this
prima facie showing. The AFCCA did not order any
additional fact-finding either. Instead, to deny relief
in both cases, the AFCCA elevated the prima facie
showing standard by requiring similar facts as to
Jeter, when what was shown in Jeter is not necessary
under any Batson framework.
Both Petitioners argued the AFCCA erred based
on the demonstrated prima facie showings. In both
cases, the AFCCA required “systematic exclusion of
service members” at the trial and a showing that the
convening authorities appeared to discriminate across
multiple courts-martial. Pet. 13a-14a, 66a-67a. These
were the challenges in Jeter, before Crawford was
abrogated and Batson only applied to peremptory
21
challenges. For Petitioners, though, neither showing
was required.
Batson and its progeny made clear that
demonstrating a history of discriminatory strikes in
past cases is not necessary. Criminal defendants
raising Batson challenges may “present a variety of
evidence to support a claim that a prosecutor’s
peremptory strikes were made on the basis of race.”
Flowers, 588 U.S. at 301-02. The examples of possible
evidence, including past discrimination and statistics,
are just examples—not all of them have to be shown
nor is the list all-inclusive. See id. at 302 (highlighting
that as a catch-all, “other relevant circumstances that
bear upon the issue of racial discrimination” can be
offered). Significantly, a defendant does not have to
“demonstrate a history of racially discriminatory
strikes in order to make out a claim of race
discrimination.” Id. at 298 (citing Batson, 476 U.S. at
95). But that is exactly what the AFCCA required.
Rather than analyzing the facts in Petitioners’ cases
under the new legal standard, the AFCCA insisted
that Petitioners demonstrate replication of the Jeter
facts. Doing so was error under Batson, Jeter, and
plain error review.
On top of heightening the legal standard for both
Petitioners, the AFCCA relied on erroneous facts. For
SSgt Hagen, the AFCCA misunderstood the process
by which the initial convening order was amended,
and asserted that “the venire consisted of 14
members, including five with traditionally female
names.” Pet. 61a (emphasis added). But at the time,
the venire included twenty-one members. Special
Order A-41, July 25, 2022; Special Order A-47, July
21, 2023. It is unclear how this misunderstanding of
the facts occurred.
22
For TSgt Baumgartner, the AFCCA adopted an
erroneous statistical analysis presented by the
Government. “[T]he Government contend[ed] that the
raw statistical probability of the convening authority
selecting females for the second convening order
venire was 31% (9 of 29 questionnaires)—asserting ‘if
the convening order blindly picked 10 officers, he was
likely to select [3] female officers.’” Pet. 11a (alteration
in original). But this “statistical analysis” fails to
consider the two member pools. Six women came from
the first pool, which was made up of twenty officers.
Def. App. A at 1. Fifteen officers were picked. Id. Of
the fifteen, nine were men and six were women. Id.
That means the original venire was 60% men (9/15)
and 40% (6/15) women. Of the women, one identified
as “African American” (16%; 1/6). Def. App. B at 48.
Then when selecting from the second pool, the
convening authority was able to replicate the first
selection of minority members exactly. Special Order
A-14, Sep. 23, 2022. This was not a “31%” selection
rate, but rather two selection rates where the second
replicated the first exactly. The AFCCA was wrong to
conclude that “statistically, the raw likelihood of
selecting female panel members aligned nearly
precisely with the actual panel venire selections by
the convening authority” because “the raw likelihood
of selecting female panel members” was never
calculated. Pet. 14a.
A majority of circuits review untimely Batson
objections for plain error. See, e.g., United States v.
Brown, 352 F.3d 654, 663 (2d Cir. 2003) (applying
plain error review where the Government agreed to
the standard of review); United States v. Stafford, 136
F.3d 1109 (7th Cir. 1998) (applying plain error
review); see also Hidalgo v. Fagen, Inc., 206 F.3d 1013,
23
1019-20 (10th Cir. 2000) (failure to raise Batson
objection in trial court results in appellate court
review for plain error); Gov’t of V.I. v. Forte, 806 F.2d
73, 76 (3d Cir. 1986) (“We may notice on appeal the
use of the peremptories as plain error under Rule
52(b).”). But see James v. Bowersox, 187 F.3d 866, 869
n.4 (8th Cir. 1999) (noting in dicta that plain error
review does not apply to untimely Batson challenges).
Even under plain error review, the one-for-one
swaps in both cases post-Jeter are sufficient for a
prima facie showing on appeal. “[W]here the law at
the time of trial was settled and clearly contrary to the
law at the time of appeal—it is enough that an error
be ‘plain’ at the time of appellate consideration.”
United States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F.
2008) (quoting Johnson v. United States, 520 U.S. 461,
468 (1997)). Relatedly, “[a]n appellant gets the benefit
of changes to the law between the time of trial and the
time of his appeal.” United States v. Tovarchavez, 78
M.J. 458, 462 (C.A.A.F. 2019); see Edwards v. Vannoy,
593 U.S. 255, 262 (2021). Under these standards, both
TSgt Baumgartner and SSgt Hagen made unrebutted
prima facie showings that, in conjunction with the
AFCCA’s errors in both cases, constituted a showing
of “good cause” for CAAF review. Yet both petitions
were denied.
II. The
denials
demonstrate
the
CAAF
improperly narrowed the meaning of “on
good cause shown,” which this Court can
now review.
Congress requires the CAAF to review three
categories of cases. Two are “mandatory” categories,
where Article 67(b)(1), UCMJ, requires review of
capital cases and Article 67(a)(2), UCMJ, requires
24
review of cases sent to the CAAF by the Judge
Advocate General. 10 U.S.C. § 867. While the second
category is “neutral as to which party (an accused or
the Government) may be the one on whose behalf a
Judge Advocate General will act . . . . in practice, most
of the certified issues are submitted in cases where the
accused has triumphed in the court below.” United
States v. Caprio, 12 M.J. 30, 31 n.1 (C.M.A. 1981).
Recent experience is consistent with that observation.
Even though the United States prevails in the vast
majority of cases decided by the Courts of Criminal
Appeals—the military justice system’s intermediate
appellate courts—of the twenty cases certified to the
CAAF by a Judge Advocate General during the
CAAF’s October 2023 and October 2024 Terms,
nineteen were certified upon request of the United
States after losing before a Court of Criminal
Appeals.3
3 United States v. Hunt, __ M.J. __, No. 25-0257/AF, 2025 CAAF
LEXIS 734 (C.A.A.F. Sep. 2, 2025) (docketing certificate for
review with United States as appellant); United States v.
Mendoza, __ M.J. __, No. 25-0244/AR, 2025 CAAF LEXIS 690
(C.A.A.F. Aug. 20, 2025) (docketing certificate for review with
United States as appellee); United States v. Ixcolgonzalez, __
M.J. __, No. 25-0243/MC, 2025 CAAF LEXIS 685 (C.A.A.F. Aug.
19, 2025) (docketing certificate for review with United States as
appellant); United States v. Armsbury, __ M.J. __, No. 250233/AR, 2025 CAAF LEXIS 655 (C.A.A.F. Aug. 6, 2025) (same);
United States v. Ellis, __ M.J. __, No. 25-0197/AR, 2025 CAAF
LEXIS 481 (C.A.A.F. June 23, 2025) (same); United States v.
Kershaw, __ M.J. __, No. 25-0117/AF, 2025 CAAF LEXIS 408
(C.A.A.F. May 27, 2025) (same); United States v. Rocha, __ M.J.
__, No. 25-0157/AF, 2025 CAAF LEXIS 352 (C.A.A.F. May 5,
2025) (same); United States v. Deremer, __ M.J. __, No. 250158/MC, 2025 CAAF LEXIS 350 (C.A.A.F. May 5, 2025) (same);
United States v. Ford, __ M.J. __, No. 25-0143/AR, 2025 CAAF
LEXIS 306 (C.A.A.F. Apr. 22, 2025) (same); United States v.
Jones, __ M.J. __, No. 25-0141/AR, 2025 CAAF LEXIS 310
25
The final category of case that falls within the
CAAF’s jurisdiction is “discretionary.” Congress
mandates that the CAAF “shall” review the record in
“all cases” that have been reviewed by a Court of
Criminal Appeals where the CAAF granted review
“upon petition of the accused and on good cause
shown.” 10 U.S.C. §867(a)(3). Discussing that
provision, the CAAF has stated that subsection (a)(3)
“directs this court to review cases which have been
reviewed by a Court of Criminal Appeals and where
there is a ‘petition of the accused’ and ‘good cause
shown.’ The statute clearly establishes that both of
these predicates must exist before the congressional
mandate to review a case arises.” United States v.
Rodriguez, 67 M.J. 110, 114-15 (C.A.A.F. 2009). In
both Petitioners’ cases, there was such a petition and
showing of good cause. Accordingly, under the CAAF’s
own understanding of its jurisdiction-granting
statute, it was “mandate[d] to review those cases.” Id.
While appeals to the U.S. Circuit Courts of Appeals
are a matter of right, see 28 U.S.C. §§ 1291-1292, the
CAAF must grant a service member’s petition for
(C.A.A.F. Apr. 22, 2025) (same); United States v.
Calvillomagana, __ M.J. __, No. 25-0142/AR, 2025 CAAF LEXIS
315 (C.A.A.F. Apr. 22, 2025) (same); United States v. Malone, __
M.J. __, No. 25-0140/AR, 2025 CAAF LEXIS 299 (C.A.A.F. Apr.
21, 2025) (same); United States v. Serjak, 85 M.J. 407 (C.A.A.F.
2025) (same); United States v. Hennessy, 85 M.J. 396 (C.A.A.F.
2025) (same); United States v. Moore, 85 M.J. 394 (C.A.A.F. 2025)
(same); United States v. Patterson, 85 M.J. 320 (C.A.A.F. 2025)
(same); United States v. Downum, __ M.J. ___, No. 24-0156/AR,
2024 CAAF LEXIS 315 (C.A.A.F. May 14, 2024) (same); United
States v. Davis, __ M.J. ___, No. 24-0152/AR, 2024 CAAF LEXIS
314 (C.A.A.F. May 14, 2024) (same); United States v. Harborth,
84 M.J. 344 (C.A.A.F. 2024) (same); United States v. Flanner, 84
M.J. 303 (C.A.A.F. 2024) (same).
26
review only “on good cause shown.” 10 U.S.C.
§867(a)(3). The “on good cause shown” language has
existed since the original enactment of Article 67,
UCMJ, in 1950. Uniform Code of Military Justice,
Pub. L. No. 81-506, 64 Stat. 107, 129 (1950).
In a three-to-two decision, the CAAF grappled with
the discretionary nature of its review when
considering the propriety of an abatement ab initio
due to an appellant’s death. United States v. Rorie, 58
M.J. 399 (C.A.A.F. 2003). The majority found the
CAAF’s “petition authority is . . . akin to the writ
authority exercised by [this Court], particularly with
respect to the primary sources of appeals, the writ of
certiorari and the petition for grant of review.” Id. at
405. Citing congressional intent, the CAAF adopted
the position that the question of what cases the CAAF
will hear “is a matter of internal management,
properly left to [the CAAF’s] decision in accordance
with guidelines expressed in [the CAAF’s] rules.” Id.
(quoting S. REP. NO. 98-53, at 34 (1983)).
In equating “good cause” to this Court’s standard
for review, the CAAF created “unfettered discretion
. . . to deny review regardless of the merits of the case.”
Id. at 408 (Effron, J., dissenting). The plain language
of Article 67, UCMJ, does not support such a narrow
construction. As the dissent in Rorie pointed out,
“Counsel familiar with Supreme Court practice should
not confuse the ‘good cause’ standard under Article 67
with certiorari. Those courts that may review a case
by issuing a writ of certiorari are not required to hear
a case merely because a party demonstrates viable
legal issues requiring relief.” Id. (quoting Legal
Services, Dep’t of the Army, Pamphlet No. 27-173,
Trial Procedure 247 (1992)) (emphasis added). Rather,
Article 67(a)(3), UCMJ, “reflects congressional intent
27
to provide service members with a significant
opportunity to obtain review by an independent,
civilian tribunal, without requiring our court to grant
full review in every case.” Id. (citing United States v.
Byrd, 53 M.J. 35, 36-37 (C.A.A.F. 2000)); S. REP. NO.
98-53, at 34 (1983)) (emphasis added). The CAAF does
not have the discretion to deny review where good
cause is shown upon a timely petition.
Recently, one judge on the CAAF explained,
“Because we can hear a case does not always mean we
should.” Randolph v. HV, 76 M.J. 27, 35 (C.A.A.F.
2017) (Sparks, J., dissenting). The statute requires
the converse though: where the CAAF can hear a case
because good cause is shown, it must. Rodriguez, 67
M.J. at 114-15.
But “‘good cause’ is a capacious concept, which
vests significant discretion in officials exercising their
pertinent powers.” Eugene Fidell, Brenner M. Fissell
& Philip D. Cave, Equal Supreme Court Access For
Military Personnel: An Overdue Reform, 131 YALE L.J.
F. 1, 12 (2021). Black’s Law Dictionary defines “good
cause shown” as a “legally sufficient reason.” Good
cause shown (“See good cause under CAUSE (2)”),
Cause 2. (“good cause. (16c) A legally sufficient
reason.”), BLACK’S LAW DICTIONARY (12th ed. 2024).
The CAAF’s rules do not meaningfully elaborate on
this definition, simply requiring “argument showing
why there is good cause to grant the petition,
demonstrating with particularity why the errors
assigned are materially prejudicial to the substantial
rights of the appellant.” C.A.A.F. R. 21(b)(5). “Where
applicable,” if a condition enumerated under C.A.A.F.
Rule 21(5) exists, such a condition must be noted, but
the rule does not directly tie those various conditions
to a showing of “good cause.” Id. Whatever
28
“guidelines”—per Rorie—are expressed in the CAAF’s
rules, none explicitly define “good cause” but rather
explain the term in the negative; good cause would not
exist without an error that is “materially prejudicial
to the [appellant’s] substantial rights.” C.A.A.F. R.
21(b)(5).
This Court can now review cases the CAAF
“refused to grant.” 28 U.S.C. § 1259. Previously, other
than cases that fell within CAAF’s mandatory
jurisdiction, this Court could only review cases where
the CAAF granted review—which inherently meant
there was “good cause shown”—or otherwise granted
relief. See 28 U.S.C. § 1259 (2018). But the CAAF’s
abuse of discretion in applying the “good cause” is now
reviewable, as are the underlying issues. Granting
this petition to correct the CAAF’s improper
construction of its mandatory “good cause shown”
jurisdictional threshold would affect the CAAF’s
consideration of every petition for a grant of review.
The CAAF is no longer the “supreme court of the
military justice system.” McPhail v. United States, 1
M.J. 457, 462 (C.M.A. 1976). This Court is.
CONCLUSION
For decades, convening authorities were
encouraged, if not told, to consider race and gender to
ensure service members facing court-martial would
receive a “representative” court-martial panel. Smith,
27 M.J. at 248 (citing Crawford, 15 C.M.A. at 31). But
no more. Jeter, 84 M.J. at 73. Just as in the civilian
context, a convening authority may not draw up a
members panel pursuant to the neutral criteria of
Article 25, UCMJ, only to have discriminated at other
stages of the process. See Batson, 476 U.S. at 88. Here,
both Petitioners made unrebutted prima facie
29
showings that their constitutional rights were
violated
when
the
convening
authorities
presumptively used selection processes conscious of
race, gender, or both, for panel members. But due to
the CAAF erroneously heightening its “discretionary
review” standard, neither Petitioner was able to
secure relief within the military justice system.
As currently applied by CAAF, the “good cause”
standard governing its exercise of jurisdiction is as
heightened as this Court’s power to grant or deny
certiorari. If that is accurate, then no case where
CAAF denied review would be granted by this Court.
See Fidell, Fissell & Cave, 131 Yale L.J. F. at 13
(arguing CAAF’s review standards are “gatekeeping
with a vengeance” to decide only cases that are
“certworthy” for this Court). But this cannot be so.
Equating “good cause” to the unfettered discretionary
standard enjoyed by this Court not only improperly
narrows the statutory text in Article 67, UCMJ, but it
also renders meaningless the expansion of 28 U.S.C.
§ 1259. See Brief for National Institute of Military
Justice as Amicus Curiae Supporting Petitioner at 10,
McMurrin v. United States, 574 U.S. 936 (2014)
(mem.) (discussing how the CAAF has been effectively
limiting this Court’s jurisdiction through its “good
cause” standard and rules).
Petitioners’ cases thus present two options for this
Court. One is to grant plenary review to consider the
meaning of the phrase: “shall review the record in . . .
all cases reviewed by a Court of Criminal Appeals in
which, upon petition of the accused and on good cause
shown, the Court of Appeals for the Armed Forces has
granted review.” 10 U.S.C. 867(a). The other is to
summarily grant, vacate, and remand the case for the
CAAF to consider the unique, military-specific panel
30
selection member issue that was presented to it by
Petitioners’ supplements. Petitioners respectfully
request that this Court grant their petition and follow
one of those two paths.
Respectfully submitted,
SAMANTHA M. CASTANIEN
Counsel of Record
DWIGHT H. SULLIVAN
JOSHUA L. LOPES
United States Air Force
Appellate Defense Division
1500 West Perimeter Road
Suite 1100
Joint Base Andrews, MD 20762
(240) 612-4770
samantha.castanien.1@us.af.mil
Counsel for Petitioners
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