Chaplaincy of Full Gospel Chu, et al v. United States Navy, et al

Filing

OPINION filed [1402789] (Pages: 17) for the Court by Judge Tatel [12-5027]

USCA Case #12-5027

Document #1402789

Filed: 11/02/2012

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2012

Decided November 2, 2012

No. 12-5027
IN RE: NAVY CHAPLAINCY,
CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,
APPELLANTS
v.
UNITED STATES NAVY, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-mc-00269)

Arthur A. Schulcz, Sr. argued the cause and filed the
briefs for appellant.
Lewis Yelin, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Stuart F. Delery, Acting Assistant Attorney General, Ronald
C. Machen Jr., U.S. Attorney, and Marleigh D. Dover,
Attorney.
Before: HENDERSON, ROGERS, and TATEL, Circuit
Judges.

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Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this case, military chaplains, all
“non-liturgical Protestants,” allege that the Navy
systematically discriminates against members of their
religious denominations in the awarding of promotions in
violation of “[t]he clearest command of the Establishment
Clause . . . that one religious denomination cannot be
officially preferred over another.” Larson v. Valente, 456 U.S.
228, 244 (1982). The district court denied plaintiffs’ motion
for a preliminary injunction, concluding that they lacked
Article III standing and, alternatively, were unlikely to
succeed on the merits of their claims. For the reasons set forth
in this opinion, we reverse the district court’s determination
that plaintiffs lack Article III standing and remand for further
factual findings regarding their likelihood of success on the
merits.
I.
The Navy maintains a Chaplain Corps of commissioned
Naval officers who have the “responsibility . . . to provide for
the free exercise of religion” for all members of the Navy and
their families. In re England, 375 F.3d 1169, 1171 (D.C. Cir.
2004) (internal quotation marks omitted). Chaplains perform a
“unique” role, serving both “as clergy or . . . professional
representative[s] of a particular religious denomination and as
. . . commissioned naval officer[s].” Id. (internal quotation
marks omitted). The Navy divides the Chaplain Corps into
four “faith groups”: Catholic, liturgical Protestant, nonliturgical Protestant, and Special Worship. Id. at 1172.
Plaintiffs, current and former military chaplains, are “nonliturgical Protestants.” Non-liturgical Protestants belong to
Protestant denominations—including Baptist, Evangelical,
Pentecostal, and Charismatic—that follow no formal liturgy

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in worship services and baptize at the “age of reason” rather
than at infancy. In re Navy Chaplaincy, 534 F.3d 756, 759
(D.C. Cir. 2008). In order to become a Navy chaplain, an
individual must have an “ecclesiastical endorsement” from a
faith group endorsing agency certifying that the individual is
professionally qualified to represent that faith group within
the Chaplain Corps. In re England, 375 F.3d at 1171–72. Two
such endorsing agencies, Chaplaincy of Full Gospel Churches
and Associated Gospel Churches, are among the plaintiffs in
this case.
Like all Navy officers, chaplains are recommended for
promotion by “selection boards” convened to consider
whether particular candidates should be promoted to a higher
rank. Id. at 1172. Because selection boards are required by
statute to include at least one member from the “competitive
category” being considered for promotion, selection boards
considering chaplain promotions must have at least one
chaplain as a member. 10 U.S.C. § 612(a)(2)(A). By
instruction of the Secretary of the Navy, chaplain selection
boards are currently composed of seven members: two
chaplains and five other officers. SECNAVINST 1401.3A,
Suppl. ¶ 1.c.(1)(f). Selection boards make initial promotion
recommendations that are subsequently reviewed by the
Secretary of the Navy and then submitted to the Secretary of
Defense for transmittal to the President. 10 U.S.C.
§§ 618(a)(1), (c)(1).
Plaintiffs contend that Naval selection boards discriminate
against non-liturgical Protestant chaplains on the basis of
religious denomination. Relying on statistical analysis by their
expert and other evidence, they assert that non-liturgical
Protestant chaplains are promoted to higher ranks at
significantly lower rates than are liturgical Protestant and
Catholic chaplains, and that candidates are more likely to be

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recommended for promotion when they share the
denomination of the chaplains who sit on the selection board.
Plaintiffs focus on certain “policies, practices, and
procedures” that they allege “facilitate and allow
denominational or faith group favoritism.” Appellants’ Br. 7
(emphasis omitted). Specifically, plaintiffs allege that the
small size of the selection boards and the practice of voting in
secret allow promotion decisions to be made on the basis of
religious bias. Selection board members vote by pressing one
of five buttons that indicate the degree of confidence the voter
has in the candidate, ranging from zero to 100. Plaintiffs
contend that because boards are composed of only seven
members, a chaplain can essentially veto a candidate by
voting a “zero” level of confidence, thus significantly
reducing that candidate’s chances of selection. According to
plaintiffs, because chaplains can exercise this veto power in
secret, they are free to select candidates based on their own
religious conceptions of how ministry should be conducted.
Plaintiffs also challenge the practice of appointing the Chief
of Chaplains as president of chaplain selection boards,
asserting that the Chief’s “role and influence as a decision
maker in the award of Navy benefits introduces religion into
the decision and results in denominational favoritism.” Pls.’
Mem. in Supp. of Mot. for Prelim. Inj. 23. Plaintiffs tell us
that “the other Armed Services” avoid these problems by
convening larger selection boards and requiring public voting.
Appellants’ Br. 60.
As we understand it, plaintiffs’ claim rests on two distinct
theories. First, in what we shall call their “denominational
preference” theory, they assert that selection boards
discriminate against non-liturgical Protestants in making
promotion decisions in violation of the Establishment Clause
and the Fifth Amendment’s equal protection component.

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Second, plaintiffs assert that the Navy, also in violation of the
Establishment Clause, impermissibly delegates governmental
authority to religious entities by permitting chaplains to award
government benefits in the form of promotions without
effective guarantees that such authority will be exercised in a
neutral, secular manner.
The Navy takes issue with both theories. With respect to
the denominational preference theory, the Navy asserts that
there is no “factual basis for [plaintiffs’] claims that Navy
chaplain promotion boards had discriminated against
plaintiffs in the past or would likely do so in the future.”
Appellees’ Br. 36. Relying on its own statistical expert, the
Navy challenges the methodology employed by plaintiffs’
expert and asserts that its “own evidence establish[es] the
absence of any religious discrimination by the promotion
boards.” Appellees’ Br. 35. As to plaintiffs’ second theory,
the Navy asserts that the authority delegated to chaplains who
sit on promotion boards is not at all standardless because the
chaplains “must abide by statutory requirements and Navy
instructions governing the selection of officers for
promotion.” Appellees’ Br. 43.
Plaintiffs filed a motion for a preliminary injunction
seeking to enjoin the challenged procedures. Denying the
motion, the district court began by concluding that plaintiffs
lacked Article III standing, reasoning that their asserted future
injury was too speculative because it rested on the assumption
that chaplains sitting on future selection boards would
“ ‘necessarily favor candidates affiliated with [their] own
denomination,’ ” an assumption the court found implausible
given that Naval officers “are presumed to undertake their
official duties in good faith.” In re Navy Chaplaincy, 841 F.
Supp. 2d 336, 345 (D.D.C. 2012) (citation omitted). The
district court went on to conclude that even if plaintiffs had

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Article III standing, the balance of the four preliminary
injunction factors weighed against granting injunctive relief.
Although the court presumed the existence of irreparable
harm because plaintiffs had alleged an Establishment Clause
violation, id. at 347, the court found that plaintiffs were
unlikely to succeed on the merits, id. at 345–46, and that the
balance of equities and the public interest weighed against
granting preliminary injunctive relief. Id. at 347–49. Plaintiffs
now appeal.
II.
We begin with the question of whether we have statutory
jurisdiction to hear this case. In the district court, the Navy
argued that the court lacked jurisdiction to consider plaintiffs’
claims because courts are prohibited by statute from
reviewing claims based “on the failure of a person to be
selected for promotion by a promotion board” unless the
person has first exhausted administrative remedies. 10 U.S.C.
§ 628(h)(1). The district court rejected this argument, In re
Navy Chaplaincy, 841 F. Supp. 2d at 344, and the Navy has
wisely chosen not to renew it on appeal. As the district court
explained, jurisdiction is proper because plaintiffs ask us “to
determine the validity of [a] law, regulation, or policy relating
to selection boards,” not to review the promotion decisions of
individual selection boards. Id.; see 10 U.S.C. § 628(i)(1)
(“Nothing in this section limits[] the jurisdiction of any court
of the United States . . . to determine the validity of any law,
regulation, or policy relating to selection boards.”). We thus
turn to the question of Article III standing, an issue we review
de novo. LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir.
2011).
“[T]hose who seek to invoke the jurisdiction of the federal
courts must satisfy the threshold requirement imposed by
Article III of the Constitution by alleging an actual case or

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controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101
(1983). To establish constitutional standing, a plaintiff must
show (1) an injury in fact that is “concrete and particularized”
and “actual or imminent”; (2) that the injury is “fairly
traceable” to the defendants’ challenged conduct; and (3) that
the injury is likely to be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(internal quotation marks and alterations omitted). And, as we
earlier explained in this very litigation, “[i]n reviewing the
standing question, we must be careful not to decide the
questions on the merits for or against the plaintiff, and must
therefore assume that on the merits the plaintiffs would be
successful in their claims.” In re Navy Chaplaincy, 534 F.3d
at 760.
Where as here plaintiffs seek “forward-looking injunctive
. . . relief, past injuries alone are insufficient to establish
standing.” NB ex rel. Peacock v. District of Columbia, 682
F.3d 77, 82 (D.C. Cir. 2012) (internal quotation marks
omitted). Instead, plaintiffs must show that they face an
imminent threat of future injury. Lyons, 461 U.S. at 105; see
also O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). Here,
plaintiffs contend that they face future injury because they
will likely suffer discrimination on the basis of their religious
denomination when they are considered for promotion by
future selection boards. This assertion of future injury
depends on two subsidiary premises: that plaintiffs will be
considered for promotion by future selection boards and that
selection boards will discriminate against them on the basis of
their religious denomination.
The first premise is undisputed. The Navy concedes that
future selection boards may very well consider the promotion
of at least some plaintiffs. Appellees’ Br. 19. Thus, this is not
a situation in which plaintiffs have asserted mere “ ‘some day’

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intentions” to engage in the conduct they claim will cause
them injury. Lujan, 504 U.S. at 564; see also Fair
Employment Council of Greater Washington, Inc. v. BMC
Marketing Corp., 28 F.3d 1268, 1273–74 (D.C. Cir. 1994)
(plaintiffs lacked standing to seek injunctive relief where they
failed to allege that they would seek job referrals in the near
future from the defendant they claimed would discriminate
against them on the basis of race). Here, at least some
plaintiffs will probably appear before selection boards in the
near future.
The second premise—that selection boards are likely to
discriminate against plaintiffs on the basis of their religious
denomination—is disputed by the Navy on the grounds that
the asserted future injury depends, as the district court found,
on the questionable assumption that “chaplains who will serve
as promotion board members will necessarily favor
candidates affiliated with [their] own denomination.” In re
Navy Chaplaincy, 841 F. Supp. 2d at 345 (internal quotation
marks omitted). According to the Navy, mere predictions that
chaplains will someday behave in a biased manner are too
conjectural to support standing. It is true that vague
predictions of future discriminatory conduct are insufficient to
demonstrate the imminent threat of future injury necessary to
support standing to seek injunctive relief. In Lyons, for
example, the Supreme Court held that a plaintiff who had
previously been stopped by the police and subjected to a
chokehold lacked standing to seek injunctive relief because
the plaintiff’s assertion that the police were likely to apply a
chokehold to him again in any future encounter was too
speculative to demonstrate an imminent threat of future
injury. 461 U.S. at 105–06. We have similarly found standing
lacking where plaintiffs claimed future injury based on
speculation about alleged discriminatory practices
unconnected to concrete policies. See Worth v. Jackson, 451

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F.3d 854, 860 (D.C. Cir. 2006) (plaintiff failed to demonstrate
likely future injury where he “challenge[d] no statute,
regulation, or written policy committing HUD to favoring
minorities or women, resting his claim instead on speculation,
untethered to any written directive, about how HUD is likely
to make future employment decisions”).
In this case, however, plaintiffs’ asserted future injury
does not depend solely on speculation about whether
individual chaplains will behave in a biased manner. Instead,
plaintiffs challenge specific policies and procedures—the
casting of secret votes, the small size of selection boards, and
the appointment of the Chief of Chaplains as president—that
they claim have resulted in denominational discrimination
and, if not ended, will continue to do so in the future. Unlike
in other cases, like Lyons, where plaintiffs speculated about
the very existence of the unwritten discriminatory practices at
issue, here the Navy acknowledges that the challenged
policies and procedures not only exist, but will continue to
govern the conduct of future selection boards. The prospect of
future injury becomes significantly less speculative where, as
here, plaintiffs have identified concrete and consistentlyimplemented policies claimed to produce such injury. For
example, the Supreme Court suggested in Lyons that the
plaintiff would have been able to show a likelihood of future
injury had he alleged that the City maintained a policy
directing or authorizing the use of chokeholds without
provocation. 461 U.S. at 105–06. Similarly, in NB ex rel.
Peacock, where Medicaid-eligible plaintiffs claimed they
faced an imminent threat of future prescription coverage
denials without the required notice, we found it significant
that plaintiffs had alleged that the defendant maintained “a
policy of denying prescription coverage without providing the
various forms of notice that plaintiffs claim are required.” 682
F.3d at 85. We emphasized that plaintiffs had alleged “not

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only that numerous specific denials of coverage were made
without adequate notice, but also that [the defendant’s]
guidance and manuals . . . contain no provisions for giving
Medicaid recipients written notice of the reasons for coverage
denials.” Id. (citations omitted).
To be sure, plaintiffs here never allege that the challenged
policies directly authorize discrimination against or require
disparate treatment of non-liturgical Protestants. Instead, they
assert that these policies facilitate or exacerbate
discrimination by chaplains serving on selection boards. We
take the Navy’s point that the asserted causal link between the
policies and the alleged discrimination is more attenuated here
than in a case where the challenged policies directly authorize
the allegedly illegal conduct. Cf. Worth, 451 F.3d at 859
(plaintiff had standing to challenge HUD’s written affirmative
action plan authorizing racial and gender goals in
employment). That said, we conclude that plaintiffs’
allegation that the challenged policies will likely result in
discrimination is sufficiently non-speculative to support
standing. For one thing, chaplains inclined to vote on the basis
of their religious preferences may be more likely to do so
under the cover of secret ballots. Moreover, it goes without
saying that the small size of selection boards gives potentially
biased chaplains more influence over the outcome of the
proceedings.
We would have a different view of this issue if plaintiffs’
claims of discrimination on the basis of religious
denomination were the type of “fantastic” allegations that
have given us pause elsewhere. Tooley v. Napolitano, 586
F.3d 1006, 1009 (D.C. Cir. 2009) (internal quotation marks
omitted). But this is not such a case. Our nation has long
grappled with the curse of discrimination on the basis of
religious belief. The “spiritual tyranny” of the Anglican

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Church was one reason why Thomas Jefferson proposed the
Virginia Statute for Religious Freedom of 1786. Merrill D.
Peterson, Thomas Jefferson and the New Nation 133–34
(1970 ed.). In the late nineteenth century, reflecting the then
“pervasive hostility” towards the Catholic Church, the nation
nearly adopted the infamous Blaine Amendment, which
would have barred aid to “sectarian”—widely understood to
mean “Catholic”—institutions. Mitchell v. Helms, 530 U.S.
793, 828 (2000) (plurality opinion). And in more recent times,
courts have invalidated laws that discriminate against
particular religious beliefs or practices by laying “the hand of
the law . . . on the shoulder of a minister of [an] unpopular
group.” Fowler v. Rhode Island, 345 U.S. 67, 70 (1953)
(invalidating municipal ordinance interpreted to prohibit
preaching in public park by a Jehovah’s Witness but to allow
church services by Catholics and Protestants); see also
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 542, 546–47 (1993) (invalidating ordinances
prohibiting animal sacrifice found to be aimed at suppressing
the religious practices of Santeria adherents).
In response to plaintiffs’ claims, the Navy attacks the
evidentiary underpinnings of plaintiffs’ allegations and argues
that the challenged procedures do not result in discrimination
against non-liturgical Protestants. This argument, however,
goes to the merits of plaintiffs’ claims, not their standing to
bring them. To be sure, the Navy may challenge plaintiffs’
evidence to the extent it relates to standing, but it may not
“bootstrap standing analysis to issues that are controverted on
the merits.” Public Citizen v. FTC, 869 F.2d 1541, 1549 (D.C.
Cir. 1989). Here, the Navy neither disputes plaintiffs’ claims
that they will expose themselves to potential injury by
applying for promotions nor argues that it has any plans to
change the procedures alleged to injure plaintiffs. Instead, the
Navy argues that plaintiffs’ evidence fails to demonstrate a

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pattern of discrimination against non-liturgical Protestants.
Perhaps the Navy is right about this, but that is a question for
the merits, not for standing, and at this stage we must assume
that plaintiffs will prevail on the merits. Thus, in In re Navy
Chaplaincy, we “assume[d] arguendo that the Navy’s
operation of its retirement system favors Catholic chaplains
and disfavors non-liturgical Protestant chaplains in violation
of the . . . Establishment Clause.” 534 F.3d at 760 (internal
quotation marks omitted). Here too we must assume that
plaintiffs will prevail on their claims that the Navy’s
promotion system operates in a similarly discriminatory
fashion.
We are thus satisfied that at least those plaintiffs whose
promotions will likely be considered by future selection
boards operating under the challenged policies have standing
to pursue their claims for injunctive relief. Although future
injury is not certain, “absolute certainty is not required.” NB
ex rel. Peacock, 682 F.3d at 85. It is sufficient that plaintiffs
have demonstrated a “likelihood of injury that rises above the
level of unadorned speculation—that is, a realistic danger that
[they] will suffer future harm.” Id. at 85–86 (internal
quotation marks omitted). Because only one plaintiff must
have standing, we have no need to consider either the Navy’s
motion to dismiss certain retired and former chaplains from
the appeal for lack of standing or whether the organizational
plaintiffs have standing to pursue their claims. Comcast Corp.
v. FCC, 579 F.3d 1, 6 (D.C. Cir. 2009).
III.
We turn next to the district court’s denial of plaintiffs’
motion for a preliminary injunction. A preliminary injunction
is “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.”
Winter v. Natural Resources Defense Council, Inc., 555 U.S.

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7, 22 (2008). In order to obtain a preliminary injunction, a
plaintiff “must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.”
Id. at 20. We review the district court’s ultimate decision to
deny injunctive relief, as well as its weighing of the
preliminary injunction factors, for abuse of discretion.
Chaplaincy of Full Gospel Churches v. England, 454 F.3d
290, 297 (D.C. Cir. 2006). We review the district court’s legal
conclusions de novo and its findings of fact for clear error.
Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1318
(D.C. Cir. 1998).
In this case, although the district court presumed the
presence of irreparable harm because plaintiffs had alleged an
Establishment Clause violation, it ultimately denied their
motion for a preliminary injunction, concluding that they
were unlikely to succeed on the merits and that both the
balance of equities and the public interest weighed against
granting the injunction. As the Navy concedes, the district
court correctly assumed that plaintiffs have demonstrated
irreparable harm. Appellees’ Br. 44; see Chaplaincy of Full
Gospel Churches, 454 F.3d at 303 (“[W]here a movant
alleges a violation of the Establishment Clause, this is
sufficient, without more, to satisfy the irreparable harm prong
for purposes of the preliminary injunction determination.”).
Moreover, the Supreme Court has instructed that, in assessing
the balance of equities and the public interest, we must “ ‘give
great deference to the professional judgment of military
authorities’ ” regarding the harm that would result to military
interests if an injunction were granted. Winter, 555 U.S. at 24
(quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)).
This leaves the question of likelihood of success on the
merits.

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We begin with plaintiffs’ delegation theory—that the
Navy impermissibly delegates governmental authority to
religious entities by permitting chaplains to make promotion
decisions without effective guarantees that the authority will
be exercised in a secular manner. In support, plaintiffs cite
Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), in which
the Supreme Court held that a Massachusetts statute granting
religious institutions an effective veto power over applications
for liquor licenses violated the Establishment Clause because
the delegated power was “standardless, calling for no reasons,
findings, or reasoned conclusions” and because there were no
“effective means of guaranteeing that the delegated power
will be used exclusively for secular, neutral, and
nonideological purposes.” Id. at 125; see also United
Christian Scientists v. Christian Science Board of Directors,
829 F.2d 1152, 1170–71 (D.C. Cir. 1987). Plaintiffs
emphasize that they object not to the mere delegation of civic
authority, but rather to the fact that such delegation is, as in
Larkin, devoid of standards and procedural guarantees to
ensure the neutral exercise of such power.
This case is a far cry from the “standardless” delegation
scheme at issue in Larkin. Here, Congress and the Secretary
of the Navy have articulated secular, neutral standards to
guide selection board members in evaluating candidates for
promotion. Specifically, board members are required by
statute to recommend for promotion those officers they deem
“best qualified for promotion within each competitive
category considered by the board,” 10 U.S.C. § 616(a), and
the Navy provides to each selection board specific “guidance
relating to the needs of the Navy . . . for officers with
particular skills in each competitive category, and other
information and guidelines as necessary to enable the board to
perform its functions properly.” SECNAVINST 1420.1B,

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¶ 13.d.(2). And unlike in Larkin, where the churches had final
say over the liquor license applications, 459 U.S. at 125, here
the two chaplains on the selection boards share decisionmaking authority with five others, and the board’s promotion
decisions are subject to further review by the Secretary of the
Navy and the Secretary of Defense. 10 U.S.C. §§ 618(a)(1),
(c)(1). We thus see no error in the district court’s conclusion
that plaintiffs are unlikely to succeed on the merits of their
delegation theory.
We have a different view of the district court’s resolution
of plaintiffs’ denominational preference theory, i.e., that the
Navy discriminates against non-liturgical Protestants on the
basis of their religious denomination. As discussed above,
plaintiffs contend that their statistical analysis provides strong
evidence of a pattern of discrimination. For its part, the Navy
challenges plaintiffs’ evidence and offers its own expert
analysis that it claims demonstrates that no such
discrimination exists.
Unfortunately, the district court made no factual findings
to resolve these competing claims. All it had to say about the
issue was this: “the plaintiffs have submitted no evidence
from which the court could assume that the future promotion
boards will follow any putative pattern of alleged past
discrimination.” In re Navy Chaplaincy, 841 F. Supp. 2d at
346. But this is the wrong legal standard. Whether “future”
promotion boards are likely to discriminate on the basis of
religious denomination is, as we have explained, the question
we ask to determine whether plaintiffs have Article III
standing. The issue before us now—whether plaintiffs are
likely to succeed on the merits—turns on whether they have
made a strong showing of a pattern of past discrimination on
the basis of religious denomination and whether that pattern is
linked to the policies they challenge. Perhaps by saying that

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plaintiffs had “submitted no evidence from which the court
could assume” future injury, id., the district court meant to
say that plaintiffs’ evidence of a pattern of past
discrimination, when considered in light of the Navy’s
contrary evidence, was unpersuasive. Yet the district court
never said so, much less explained why it reached any such
conclusion. Under these circumstances, we have no findings
to review for clear error. See Lyles v. United States, 759 F.2d
941, 944 (D.C. Cir. 1985) (“Where the trial court provides
only conclusory findings, unsupported by subsidiary findings
or by an explication of the court’s reasoning with respect to
the relevant facts, a reviewing court simply is unable to
determine whether or not those findings are clearly
erroneous.”).
The Navy insists that the district court did make factual
findings regarding plaintiffs’ showing of past discrimination.
In support, it points to the court’s statement that “the evidence
put forth by the plaintiffs at best establishes a colorable claim
to relief under the Establishment Clause.” In re Navy
Chaplaincy, 841 F. Supp. 2d at 349. At oral argument,
counsel for the Navy claimed that this amounts to an implicit
factual finding to which we must defer unless clearly
erroneous. Oral Arg. Rec. 34:05–34:32, 34:58–35:30; see
Ellipso, Inc. v. Mann, 480 F.3d 1153, 1159 (D.C. Cir. 2007)
(applying clear error review to implicit factual finding of
district court in granting preliminary injunction). But the cited
statement cannot fairly be read as a finding—implicit or
otherwise—about the strength of plaintiffs’ showing of past
discrimination. The district court’s entirely conclusory
statement gives us no insight at all into whether the court
perceived the defect in the Establishment Clause claim to be
legal or factual, or, if factual, whether it thought the weakness
lay in the evidence of past or future discrimination.

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IV.
For the foregoing reasons, we reverse the district court’s
determination that plaintiffs lack Article III standing to seek
injunctive relief. We also vacate the district court’s denial of a
preliminary injunction and remand for further proceedings
consistent with this opinion.
So ordered.

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