Chaplaincy of Full Gospel Churches v. England

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2006 Decided July 7, 2006

No. 05-5143

CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,

APPELLANTS

v.

GORDON R. ENGLAND , SECRETARY OF THE U.S. NAVY , ET AL.,

APPELLEES

Consolidated with

05-5144

Appeals from the United States District Court

for the District of Columbia

(No. 00cv00566)

(No. 99cv02945)

Arthur A. Schulcz, Sr. argued the cause and filed the briefs

for appellants.

Robert M. Loeb, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were Peter

D. Keisler, Assistant Attorney General, Kenneth L. Wainstein,

U.S. Attorney, and I. Glenn Cohen, Attorney.

2

Before: HENDERSON , ROGERS and BROWN , Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN .

BROWN , Circuit Judge: Appellants, current and former

Navy chaplains of “non-liturgical Protestant” faiths and their

endorsing agency, brought suit alleging the Navy has unconstitu-

tionally established and maintained a religious quota system for

the promotion, assignment, and retention of Navy chaplains that

disadvantages chaplains of non-liturgical Protestant faiths. In

the midst of discovery, Appellants moved for preliminary and

structural injunctions and for partial summary judgment. The

district court denied the motion in its entirety, finding, in

particular, that Appellants had failed to demonstrate the irrepara-

ble injury necessary to warrant preliminary injunctive relief. We

affirm the district court as to its denial of a structural injunction,

and we have no jurisdiction to review its denial of partial

summary judgment; however, because we conclude Appellants

have satisfied the requisite showing of irreparable harm for an

Establishment Clause violation, we vacate the district court’s

judgment denying preliminary injunctive relief and remand for

the district court to proceed with the remainder of the prelimi-

nary injunction determination.

I

The United States Navy maintains a Chaplain Corps to

“meet the spiritual needs of those who serve in the Navy and

their families.” Adair v. England, 183 F. Supp. 2d 31, 35

(D.D.C. 2002) (citation and internal quotation mark omitted).

Chaplains serve as Naval officers and, like other military

officers, both regular and reserve, receive periodic reviews by

promotion selection boards that determine which officers should

3

be recommended for promotion. Id. at 35-36; 10 U.S.C. §§ 611,

14101. Any officer a promotion selection board considers but

does not recommend for promotion is deemed to have “failed of

selection” (FOS) to the higher grade. 10 U.S.C. §§ 627, 14051.

The military may convene a special selection board for officers

who were erroneously not considered by a promotion selection

board, or who were considered but did not receive lawful or

proper consideration. Id. §§ 628, 14502; SECNAV Instruction

1401.1B, Special Promotion Selection Boards for Commissioned

and Warrant Officers in the Navy and Marine Corps ¶ 4(b)

(Dep’t of the Navy Apr. 25, 1997).

Federal law mandates separation from military service based

on criteria relating to age, grade, and failures of selection. In

general, naval reserve officers who have not been recommended

for promotion to the grade of rear admiral (lower half) must be

separated from the military on the last day of the month they

reach 60 years of age.1 10 U.S.C. § 14509. The Secretary of the

Navy is afforded some flexibility to deviate from this rule,

however. Provided a reserve officer in the Chaplain Corps has

not twice failed to be promoted to the next higher grade, the

Secretary may retain the chaplain until age 67. Id.

§ 14703(a)(2). Ordinarily, a second FOS makes separation

mandatory, e.g., id. §§ 14505-14506, but even officers who

would otherwise be precluded from further service for having

twice failed of selection may, “subject to the needs of the

service,” be considered for continuation under regulations

prescribed by the Secretary of Defense, id. § 14701(a)(1);

SECNAV Instruction 1920.7B, Continuation on Active Duty of

Regular Commissioned Officers and Reserve Officers on the

1

As pertinent to this appeal, the grades of lieutenant and

lieutenant commander are both below the grade of rear admiral (lower

half). 10 U.S.C. § 5501.

4

Reserve Active Status List (RASL) in the Navy and Marine

Corps (Dep’t of the Navy Jan. 30, 2006); DoD Directive 1320.8,

Continuation of Regular Commissioned Officers on Active Duty

and Reserve Commissioned Officers on the Reserve Active

Status List (Dep’t of Defense Oct. 21, 1996).2 Chaplains

retained under this continuation exception may also serve until

age 67. SECNAV Instruction 1920.7B ¶ 8; DoD Directive

1320.8 ¶ 4.9.

The Secretary of the Navy has issued instructions describing

the qualifications for eligibility as a Chaplain Corps officer. “To

be eligible for appointment . . . in either the active-duty or

Reserve components, or for voluntary recall from the Reserve

component to the active-duty list,” an applicant must, among

other requirements, “be able to complete 20 years of active

commissioned service by age 60,” a benchmark that may be

raised to age 62 in certain instances. SECNAV Instruction

1120.4, Appointment of Regular and Reserve Officers in the

Chaplain Corps of the Navy ¶ 6(b) (Dep’t of the Navy May 14,

1986). Applicants who will be unable to complete 20 years of

active commissioned service by age 60 must, before their

appointment, acknowledge in writing that they are ineligible for

appointment to regular service. Id. ¶ 6. In addition, applicants

who will be unable to complete 20 years of creditable service for

2

Prior to 2003, both regular and reserve officers who twice failed

of selection were considered for continuation by a selection board

convened expressly for that purpose. 10 U.S.C. §§ 637(a)(1),

14701(a)(1) (2000); id. §§ 611(b), 14101(b)(1). In 2003, in an effort

to “streamline[]” the process for continuation of reserve officers,

Congress repealed the selection board requirement as to reserve

officers. National Defense Authorization Act for Fiscal Year 2004,

Pub. L. No. 108-136, § 511, 117 Stat. 1392, 1459.

5

retirement must similarly acknowledge the same in writing. Id.

The Navy divides its chaplains into four categories accord-

ing to common faith group characteristics: Catholic, liturgical

Protestant, non-liturgical Protestant, and “special worship.”

“Liturgical Protestant” refers to Protestant denominations that

trace their origins to the Reformation, retain an established

liturgy in their worship services, and practice infant baptism; it

includes Lutheran, Episcopal, Methodist, Presbyterian, and

Congregational faiths. Adair, 183 F. Supp. 2d at 36. “Non-

liturgical Protestant” refers to Protestant denominations that do

not have a formal liturgy or order in their worship services, that

baptize only those who have reached the age of reason, and

whose clergy generally do not wear religious vestments during

services; it includes Baptist, Evangelical, Pentecostal, and

Charismatic faiths. Id.; see also In re England, 375 F.3d 1169,

1172 (D.C. Cir. 2004).3

Plaintiffs-Appellants are a group of current and former Navy

chaplains of non-liturgical Protestant faiths and their recognized

endorsing agency, the Chaplaincy of Full Gospel Churches.4

They filed two separate suits against the Secretary of the Navy

and other Navy personnel in their official capacities and the

Navy itself, Appellees here. In both actions, Appellants alleged

3

“Special worship” refers to faith groups, both Christian and

non-Christian, that have “unique or special needs for their worship

and religious practices”; it includes Jewish, Christian Science,

Seventh-Day Adventist, Mormon, Buddhist, Hindu, Moslem,

Jehovah’s Witness, and Unitarian faiths. Adair, 183 F. Supp. 2d at

36. It is not a relevant category to the instant proceeding.

4

To be eligible for appointment in the Chaplain Corps, an

applicant must receive the endorsement of a recognized ecclesiastical

endorsing agency. SECNAV Instruction 1120.4, at ¶ 7(b).

6

“the Navy has established, promoted, and maintained religious

quotas and other discriminatory practices in the Navy Chaplain

Corps in violation of the First and Fifth Amendments,” In re

England, 375 F.3d at 1174, and these practices work to the

detriment of non-liturgical Christian chaplains. In 2000, the

district court consolidated the two cases for the purpose of

addressing and resolving pretrial motions. Mem. Op. Den. the

Pls.’ Mot. for Prelim. and Structural Inj.; Den. the Pls.’ Mot. for

Partial Summ. J. Without Prejudice 2 n.2 (Feb. 7, 2005) (Mem.

Op.). A prolonged series of motions and petitions followed.

See, e.g., Adair v. England, 417 F. Supp. 2d 1 (D.D.C. 2006);

Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255

(D.D.C. 2004); Chaplaincy of Full Gospel Churches v. Johnson,

217 F.R.D. 250 (D.D.C. 2003), rev’d, In re England, 375 F.3d

at 1169, cert. denied, 125 S. Ct. 1343 (2005); Chaplaincy of Full

Gospel Churches v. Johnson, 276 F. Supp. 2d 82 (D.D.C. 2003);

Chaplaincy of Full Gospel Churches v. Johnson, 276 F. Supp.

2d 79 (D.D.C. 2003); Adair v. Johnson, 216 F.R.D. 183 (D.D.C.

2003); Adair v. England, 217 F. Supp. 2d 7 (D.D.C. 2002);

Adair v. England, 209 F.R.D. 5 (D.D.C. 2002); Adair v.

England, 209 F.R.D. 1 (D.D.C. 2002); Adair v. England, 217 F.

Supp. 2d 1 (D.D.C. 2002); Adair v. England, 193 F. Supp. 2d

196 (D.D.C. 2002); Adair, 183 F. Supp. 2d at 31; see also Mem.

Op. at 2 (describing the case’s “wearisome, piecemeal litiga-

tion”).

The instant appeal stems from the district court’s denial of

Appellants’ latest motion, filed in the midst of discovery.

Appellants’ Interrogatory No. 9 requested a list of chaplains on

active duty over age 62 and their denominations. From the

Navy’s response, Appellants identified fifteen Catholic reserve

chaplains over age 62, fourteen of whom are lieutenants or

lieutenant commanders who have twice failed of selection and

yet remain on active duty. Mem. of P. & A. in Supp. of Pls.’

7

Mot. for a Prelim. and Structural Inj. and Partial Summ. J. 8

(June 5, 2003) (Pls.’ Mem.); Appellants’ Br. 11. Appellants also

identified seven of these FOS Catholic chaplains as age 67 or

greater. Pls.’ Mem. at 8.

Armed with this evidence, Appellants moved for prelimi-

nary and structural injunctions and partial summary judgment.

Appellants contended the age 60 ceiling established by 10

U.S.C. § 14509 prohibits the Navy from allowing the identified

reserve lieutenant and lieutenant commander chaplains over age

62 to remain on active duty. Id. Even if the chaplains remained

in service past age 60 under 10 U.S.C. § 14703, Appellants

argued, the Navy violated that provision’s absolute age limit of

67 by retaining seven chaplains of or over that age. Id. Appel-

lants also maintained that none of the chaplains over age 62

possessed sufficient time in service to qualify for retirement and

the resulting pension, id., and that the Navy gave those chaplains

over age 67 a “4109” personnel classification, meaning “retired

reservist recalled to active duty,” even though none of them

possessed the requisite time in service to qualify for retirement

and for the Navy legally to recall them. Id. at 9.5

The Navy’s actions, in Appellants’ words, evidence a “well

established practice of allowing Catholic Naval Reserve

chaplains, and only Catholic chaplains,” to remain on active duty

beyond mandatory separation age limits, constituting “religious

favoritism” in violation of the Establishment Clause. Id. at 1-2.

5

Appellants also claimed that even if the seven “4109” chaplains

over age 67 met the requirements for retirement and thus could legally

be recalled to active duty, the duration of their recalls exceeded the

180-day time limit set by Navy regulations. Pls.’ Mem. at 9;

SECNAV Instruction 1811.4E, Voluntary Recall/Retention of Retired

Officers to/on Active Duty ¶ 4(c) (Dep’t of the Navy June 24, 1993).

8

Appellants also accused the Navy of “fraud in covering up this

illegal retention” by wrongfully employing the “4109” classifica-

tion with respect to Catholic chaplains over age 67. Id. at 1.

The Navy’s “scheme,” according to Appellants, “appears on its

face to have no other purpose but to allow these over-age

chaplains to illegally qualify for retirement.” Id. Appellants

sought relief that would, among other things, “require the Navy

to separate immediately those chaplains it has allowed to

continue on active duty beyond age 60.” Id. at 22.

The district court denied the motion in its entirety. The

district court first rejected preliminary injunctive relief because

Appellants failed to demonstrate any irreparable injury. Mem.

Op. at 5. In so doing, it repudiated Appellants’ argument that

violation of the law, including the First Amendment and,

specifically, the Establishment Clause, per se constitutes

irreparable harm. Id. at 6-7. The district court then denied

partial summary judgment because adequate time for discovery

had not passed. Id. at 8. Appellants timely appealed.

II

We begin on a brief jurisdictional note. We have jurisdic-

tion to review the district court’s denial of preliminary injunctive

relief, see 28 U.S.C. § 1292(a)(1); however, as a general rule, we

lack jurisdiction to hear an appeal of a district court’s denial of

summary judgment, partial or otherwise. E.g., Johnson v.

Greater Se. Comm. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir.

1991). Appellants offer no reasons to deviate from this princi-

ple, so we confine the remainder of our analysis to the district

court’s denial of the requested preliminary injunction.6

6

Appellants also moved for a structural injunction, a remedy that

has been defined as an “injunction seeking to effect the reform of a

9

“The purpose of a preliminary injunction is merely to

preserve the relative positions of the parties until a trial on the

merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390,

395 (1981). It is “an extraordinary remedy that should be

granted only when the party seeking the relief, by a clear

showing, carries the burden of persuasion.” Cobell v. Norton,

391 F.3d 251, 258 (D.C. Cir. 2004). To warrant preliminary

injunctive relief, the moving party must show (1) a substantial

likelihood of success on the merits, (2) that it would suffer

irreparable injury if the injunction were not granted, (3) that an

injunction would not substantially injure other interested parties,

and (4) that the public interest would be furthered by the

injunction. E.g., Mova Pharm. Corp., 140 F.3d 1060, 1066

(D.C. Cir. 1998) (quoting CityFed Fin. Corp. v. Office of Thrift

Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)) (internal

quotation marks omitted). A district court must “balance the

strengths of the requesting party’s arguments in each of the four

required areas.” CityFed, 58 F.3d at 747. If the showing in one

social institution.” Owen M. Fiss, The Civil Rights Injunction 9

(1978). The purpose of a structural injunction is “to remodel an

existing social or political institution to bring it into conformity with

constitutional demands; e.g., restructuring a school system to facilitate

equal educational opportunities.” Lampkin v. District of Columbia,

886 F. Supp. 56, 62 (D.D.C. 1995). Structural injunctions are

“typically used as public law remedies for serious and pervasive rights

violations.” Id. The district court never specifically addressed

Appellants’ request for a structural injunction, concluding only that

it would not grant mandatory injunctive relief since Appellants failed

the less burdensome test for preliminary injunctive relief. See Mem.

Op. at 5. On appeal, Appellants’ 62-page brief devotes all of one

paragraph to arguing for this extraordinary form of relief, citing two

entirely unrelated cases. In kind, we devote all of one paragraph to

concluding that Appellants’ request for a structural injunction is

without merit.

10

area is particularly strong, an injunction may issue even if the

showings in other areas are rather weak. Id. Despite this

flexibility, though, a movant must demonstrate “at least some

injury” for a preliminary injunction to issue, id. (quoting

Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir.

1986)) (internal quotation marks omitted), for “the basis of

injunctive relief in the federal courts has always been irreparable

harm,” Sampson v. Murray, 415 U.S. 61, 88 (1974) (quoting

Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506 (1959))

(brackets and internal quotation marks omitted). A movant’s

failure to show any irreparable harm is therefore grounds for

refusing to issue a preliminary injunction, even if the other three

factors entering the calculus merit such relief. See, e.g., Sea

Containers Ltd. v. Stena AB, 890 F.2d 1205, 1210-11 (D.C. Cir.

1989).

We review a district court’s weighing of the four prelimi-

nary injunction factors and its ultimate decision to issue or deny

such relief for abuse of discretion, though any legal conclusions

upon which the district court relies, including whether Appel-

lants have demonstrated irreparable injury, are reviewed de

novo. Mova Pharm. Corp., 140 F.3d at 1066; Transohio Sav.

Bank v. Dir., Office of Thrift Supervision, 967 F.2d 598, 614

(D.C. Cir. 1992).

A

This court has set a high standard for irreparable injury.

First, the injury “must be both certain and great; it must be actual

and not theoretical.” Wisc. Gas Co. v. FERC, 758 F.2d 669, 674

(D.C. Cir. 1985) (per curiam). The moving party must show

“[t]he injury complained of is of such imminence that there is a

‘clear and present’ need for equitable relief to prevent irreparable

harm.” Id. (citations, brackets, and internal quotation marks

11

omitted). Second, the injury must be beyond remediation. As

we have stated:

The key word in this consideration is irrepara-

ble. Mere injuries, however substantial, in terms

of money, time and energy necessarily expended

in the absence of a stay are not enough. The

possibility that adequate compensatory or other

corrective relief will be available at a later date,

in the ordinary course of litigation weighs

heavily against a claim of irreparable harm.

Id. (quoting Va. Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921,

925 (D.C. Cir. 1958)) (internal quotation marks omitted).

Appellants fail to articulate a tangible injury that is either

“certain and great” or irreparable. Appellants argue the Navy’s

allegedly unlawful practice of retaining Catholic chaplains past

applicable age limits precludes non-liturgical Protestant chap-

lains from advancing to higher grades, since Congress and the

Navy cap the number of officers per grade. See 10 U.S.C.

§§ 523(a)(2), 12011(a)(2); Decl. of Captain Lyman M. Smith 2

(noting that Congress provides an annual authorization of

officers by grade, which the Navy further breaks down by

community, for example, Chaplain Corps). Such an injury is far

too speculative to warrant preliminary injunctive relief. At most,

the Navy’s purported practice reduces Appellants’ opportunities

for promotion, which are themselves dependent upon the number

of Chaplain Corps vacancies Congress and the Navy authorize

each year. Appellants perhaps inadvertently reveal the hypothet-

ical nature of their tangible injury when they refer to “the

ultimate relief which would eventually follow resolution of these

cases, e.g., possible promotions.” Appellants’ Reply Br. 20

(emphasis added). This statement underscores the absence in

12

this proceeding of any discrete injury that is “of such immi-

nence” that equitable relief is urgently necessary.

In addition, Appellants’ asserted tangible injury is

redressable. The Navy is authorized to convene special selection

boards to review a previous non-promotion. 10 U.S.C. §§ 628,

14502; SECNAV Instruction 1401.1B. Within the reserves, the

Navy may convene such a board if an “officer or former officer”

failed to receive a promotion selection board’s recommendation

because, among other reasons, the initial board acted “contrary

to law” or its action “involved [a] material error of fact.” 10

U.S.C. § 14502(b)(1)(A); SECNAV Instruction 1401.1B ¶

8(a)(1)-(2). If the special selection board recommends the

promotion of a current officer, that officer “shall, as soon as

practicable, be appointed to the next higher grade” and “shall,

upon such promotion, have the same date of rank, the same

effective date for the pay and allowances of that officer’s grade,

and the same position on the active duty list [or] the reserve

active status list . . . that officer would have had” if the original

promotion selection board had correctly recommended the

officer for promotion. 10 U.S.C. § 14502(e)(1)-(2); SECNAV

Instruction 1401.B ¶ 14. Former officers who prevail before the

special selection board are entitled to revision of their military

record “to correct an error or remove an injustice resulting from

not being selected for promotion” by the initial board. 10 U.S.C.

§ 14502(e)(3). Monetary remedies are available to such officers

“if, as a result of correcting a record, [an] amount is found to be

due.” Id. § 1552; see also, e.g., Marsh v. Johnson, 263 F. Supp.

2d 49, 51 (D.D.C. 2003) (describing correction of record and

back payment award to retired officer after special selection

board’s reversal of previous failure to recommend for promo-

tion). These measures ensure that, should the courts eventually

conclude the Navy has an unlawful practice of retaining Catholic

chaplains past applicable age limits to the detriment of non-

13

liturgical Protestant chaplains, “adequate compensatory or other

corrective relief” is available to Appellants, belying their claims

of irreparable tangible harm at this point.

B

Having failed to assert a tangible injury that constitutes

irreparable harm, Appellants are left to argue that the Navy’s

alleged violation of the Establishment Clause per se constitutes

irreparable harm. The district court rejected this proposition, but

we disagree.

Appellants’ argument that they would suffer irreparable

harm without a preliminary injunction rests on a statement by a

three-Justice plurality in Elrod v. Burns, 427 U.S. 347 (1976)

(plurality opinion), that “[t]he loss of First Amendment free-

doms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Id. at 373. Because Appellants

claim Appellees’ practice of retaining overage Catholic chap-

lains constitutes an impermissible denominational preference in

violation of the Establishment Clause, they urge us to apply the

language of the Elrod plurality on its face and conclude that

Appellants have demonstrated irreparable injury — specifically,

the harm that flows from the “forbidden message” of

marginalization Appellees’ actions send to Appellants. Appel-

lants’ Br. 20. They note several of our sister circuits have

employed Elrod to find irreparable harm where moving parties

alleged a violation of the Establishment Clause — in other

words, the precise context in which we find ourselves. See

ACLU of Ky. v. McCreary County, 354 F.3d 438, 445 (6th Cir.

2003), aff’d on other grounds, 125 S. Ct. 2722 (2005);

Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th

Cir. 1996); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d

1235, 1242 (2d Cir. 1986).

14

Appellees, in contrast, maintain Elrod is inapposite because

that case involved political speech and expression, a context far

removed from the Establishment Clause allegations Appellants

advance. They also assert the rationale underlying the Elrod

plurality’s statement was a concern that without preliminary

injunctive relief, the First Amendment rights to speech and

expression would be “chilled” during the pendency of litigation,

a harm that could not be redressed after final judgment. Appel-

lees maintain Appellants have not identified any constitutionally

protected behavior that may be chilled in the absence of a

preliminary injunction; accordingly, they claim, the concerns

motivating the Elrod plurality are not present here and Appel-

lants’ mere allegations, without more, do not support a finding

of irreparable injury.

At first blush, Appellees appear to have the better of this

debate. Elrod involved political speech and freedom of expres-

sion. There, Republican patronage employees of a county

sheriff’s department brought suit against, among others, a newly

elected county sheriff who was a Democrat. Elrod, 427 U.S. at

350 (plurality opinion). At the time, it was common for an

incoming sheriff of a different political party to replace non-

civil-service employees with members of his own party when the

existing employees lacked or failed to obtain requisite support

from, or failed to affiliate with, the new sheriff’s political party.

Id. at 351. The Elrod plaintiffs alleged they had been dis-

charged, or threatened with discharge, solely for these reasons

and claimed a violation of, inter alia, the First Amendment. Id.

at 350. Upon review, a plurality consisting of Justices Brennan,

White, and Marshall, with Justice Brennan writing, held, after

lengthy discussion, that patronage dismissals are unconstitu-

tional under the First Amendment and that plaintiffs had

therefore stated a claim. Id. at 373. The plurality then briefly

turned to whether a preliminary injunction was warranted, a

15

determination that hinged upon whether plaintiffs had made out

an irreparable injury. Concluding they had, the plurality stated:

It is clear . . . that First Amendment interests

were either threatened or in fact being impaired

at the time relief was sought. The loss of First

Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable

injury. See New York Times Co. v. United States,

403 U.S. 713 (1971). Since such injury was both

threatened and occurring at the time of [plain-

tiffs’] motion and since [plaintiffs] sufficiently

demonstrated a probability of success on the

merits, the Court of Appeals might properly have

held that the District Court abused its discretion

in denying preliminary injunctive relief.

Id. at 373-74. In a footnote to this passage, the plurality noted,

“The timeliness of political speech is particularly important.” Id.

at 374 n.29.7

The facts of Elrod, which involved dismissals from govern-

ment jobs for failure to ascribe to or gain the approval of a

political party; the plurality’s citation to New York Times, a

landmark free expression case; and the footnote stressing the

“timeliness of political speech” make evident that the pertinent

7

Justice Stewart, joined by Justice Blackmun, wrote a

one-paragraph opinion concurring in the judgment; three Justices

dissented, and one took no part in the case. Because the plurality’s

discussion of irreparable harm did not enjoy support from a majority

of Justices, it is not binding precedent but a “considered opinion” that

“should be the point of reference for further discussion of the issue.”

King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991) (en banc)

(quoting Texas v. Brown, 460 U.S. 730, 737 (1983) (plurality

opinion)) (internal quotation marks omitted).

16

Elrod language on which Appellants rely is directed toward

circumstances concerning freedom of expression. Indeed, in

almost all of the many subsequent cases in which our sister

circuits have invoked the Elrod plurality’s statement, the

operative First Amendment liberties allegedly violated were

variants of expressive liberties, such as the rights to speak,

associate, petition, or exercise one’s religion. See, e.g., Pac.

Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir.

2005); Tucker v. City of Fairfield, 398 F.3d 457, 464 (6th Cir.

2005); Joelner v. Village of Washington Park, 378 F.3d 613, 620

(7th Cir. 2004); Newsom v. Albemarle County Sch. Bd., 354 F.3d

249, 261 (4th Cir. 2003); Brown v. Cal. Dep’t of Transp., 321

F.3d 1217, 1226 (9th Cir. 2003); Tenafly Eruv Ass’n v. Borough

of Tenafly, 309 F.3d 144, 178 (3d Cir. 2002); Iowa Right to Life

Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999); Bery

v. City of New York, 97 F.3d 689, 693-94 (2d Cir. 1996); Miss.

Women’s Med. Clinic v. McMillan, 866 F.2d 788, 795 (5th Cir.

1989); Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 4

(1st Cir. 1987); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir.

1983). The number of cases applying Elrod to alleged Establish-

ment Clause violations is comparatively meager, see McCreary

Cty., 354 F.3d at 445; Baker v. Adams County/Ohio Valley Sch.

Bd., 310 F.3d 927, 930 (6th Cir. 2002) (per curiam);

Ingebretsen, 88 F.3d at 280; Quinones, 803 F.2d at 1242, and,

furthermore, each of these decisions cites Elrod only in passing,

devoid of any analysis of its particular context. The single court

that focused on Elrod’s facts recognized the statement at issue

here “was made . . . in the context of free speech” and rejected

applying it axiomatically to Establishment Clause claims. ACLU

of Ill. v. City of St. Charles, 794 F.2d 265, 274 (7th Cir. 1986).

Therefore, there is superficial merit to Appellees’ argument that

Elrod ought to play no role in the proceeding before us, which

turns entirely on establishment claims.

17

In addition, Appellees accurately note that this court has

construed Elrod to require movants to do more than merely

allege a violation of freedom of expression in order to satisfy the

irreparable injury prong of the preliminary injunction frame-

work. Rather, moving parties must also establish they are or will

be engaging in constitutionally protected behavior to demon-

strate that the allegedly impermissible government action would

chill allowable individual conduct. Thus, for example, in

National Treasury Employees Union v. United States, 927 F.2d

1253 (D.C. Cir. 1991), we refused to find irreparable harm

where federal employees sought a preliminary injunction after

alleging that ethics laws prohibiting them from making appear-

ances, delivering speeches, and writing articles for compensation

violated their First Amendment rights. Id. We noted that while

“the loss of First Amendment freedoms, for even minimal

periods of time, may constitute irreparable injury,” id. at 1254

(quoting Elrod, 427 U.S. at 373 (plurality opinion)) (brackets

and internal quotation marks omitted), movants must show that

their “First Amendment interests are either threatened or in fact

being impaired at the time relief is sought,” id. at 1254-55

(quoting Wagner v. Taylor, 836 F.2d 566, 577 n.76 (D.C. Cir.

1987) (quoting Elrod, 427 U.S. at 373 (plurality opinion)))

(brackets omitted). We concluded that because the record did

not suggest the plaintiffs would “cease speaking or writing”

before the district court resolved their claims, irreparable harm

would not follow and preliminary relief could not issue. Id. at

1255. Several other courts have adopted this approach, which

emphasizes that where it is not clear that a particular statute,

policy, or practice will have any actual adverse effect on

protected First Amendment liberties, the moving party must

demonstrate some likelihood of a chilling effect on their rights.

As the Second Circuit has stated:

18

Where a plaintiff alleges injury from a rule or

regulation that directly limits speech, the irrepa-

rable nature of the harm may be presumed. . . .

In contrast, in instances where a plaintiff alleges

injury from a rule or regulation that may only

potentially affect speech, the plaintiff must

establish a causal link between the injunction

sought and the alleged injury, that is, the plaintiff

must demonstrate that the injunction will prevent

the feared deprivation of free speech rights.

Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 349-50

(2d Cir. 2003); see also Hohe v. Casey, 868 F.2d 69, 72-73 (3d

Cir. 1989) (“[T]he assertion of First Amendment rights does not

automatically require a finding of irreparable injury . . . . Rather

the plaintiffs must show ‘a chilling effect on free expression.’”

(quoting Dombrowski v. Pfister, 380 U.S. 479, 487 (1965)));

Am. Postal Workers Union v. U.S. Postal Serv., 766 F.2d 715,

722 (2d Cir. 1985); cf. Laird v. Tatum, 408 U.S. 1, 13-14 & n.7

(1972). Accordingly, Appellees are correct when they assert that

in this court, as in several others, “there is no per se rule that a

violation of freedom of expression automatically constitutes

irreparable harm.” Appellees’ Br. 23.

But the crucial distinction Appellees fail to recognize, and

which ultimately undermines their position, is that freedom of

expression is not the operative First Amendment right at issue in

this case. It is not the freedom to speak, to associate, to petition,

to exercise one’s religion, or any other liberty that protects an

individual’s freedom to engage in a particular activity. Rather,

the pertinent liberty here is protection against government

imposition of a state religion or religious preference. This

protection, unlike other First Amendment rights that are variants

of the freedom to express oneself, requires no affirmative

19

conduct on the part of the individual before its guarantees are

implicated by government action. As a matter of semantics, an

act chills the freedom of an individual to do something; it is

incongruous to link the concept of “chilling” with an individ-

ual’s freedom not to have something done to him. Accordingly,

while a particular government action may chill one’s propensity

to speak, associate, exercise one’s faith, or otherwise engage in

constitutionally protected individual conduct, where, as here, the

claim asserts government imposition of a religious preference,

the “chilling effect” rationale is both inapposite and superfluous.

Because of this critical difference, the twin concerns

animating Appellees’ argument are much less determinative than

they initially appear. First, while we have required individuals

seeking a preliminary injunction on First Amendment grounds

to demonstrate a likelihood that they are engaging or would

engage in the protected activity the governmental action is

purportedly infringing, we have done so only in the context of

free expression, where the relevant constitutional protection is

not implicated without some corresponding individual conduct

that faces a danger of chilling. But the Establishment Clause is

implicated as soon as the government engages in impermissible

action. Where, as here, the charge is one of official preference

of one religion over another, such governmental endorsement

“sends a message to nonadherents [of the favored denomination]

that they are outsiders, not full members of the political commu-

nity, and an accompanying message to adherents that they are

insiders, favored members of the political community.” Lynch

v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concur-

ring). This harm, to which Appellants repeatedly refer through-

out their briefs, see, e.g., Appellants’ Reply Br. 9 (“Here the

message is the Navy prefers Catholics.”), occurs merely by

virtue of the government’s purportedly unconstitutional policy

or practice establishing a religion, without any concomitant

20

protected conduct on the movants’ part. Accordingly, Appel-

lees’ reliance on National Treasury Employees Union and

similar cases is misplaced in proceedings concerning alleged

Establishment Clause violations.

Second, while Elrod arose in the context of political speech,

and its operative language has been employed almost exclusively

with respect to restrictions on free speech, free exercise of

religion, or other variants of freedom of expression, we think it

is also applicable to purported Establishment Clause violations.

We reach this conclusion not simply by axiomatically applying

Elrod’s admonition that “[t]he loss of First Amendment free-

doms, for even minimal periods of time, unquestionably

constitutes irreparable injury,” as other courts have done and

Appellants urge. Rather, we emphasize the language surround-

ing this maxim and note its validity with respect to Establish-

ment Clause claims. The Elrod plurality noted that the plain-

tiffs’ “First Amendment interests were either threatened or in

fact being impaired at the time” they sought preliminary

injunctive relief, and that because their injury was “both

threatened and occurring” and they showed a probability of

success on the merits, a preliminary injunction could follow.

Elrod, 427 U.S. at 373 (plurality opinion). Because, when an

Establishment Clause violation is alleged, infringement occurs

the moment the government action takes place — without any

corresponding individual conduct — then to the extent that the

government action violates the Establishment Clause, First

Amendment interests are “threatened or in fact being impaired.”

Of course, this raises the question of the extent to which the

disputed government action actually violates the Establishment

Clause — but this inquiry is addressed by another prong of the

preliminary injunction calculation, the likelihood of the

movant’s success on the merits. Within the irreparable harm

analysis itself — which assumes, without deciding, that the

21

movant has demonstrated a likelihood that the non-movant’s

conduct violates the law — we examine only whether that

violation, if true, inflicts irremediable injury. And because of

the inchoate, one-way nature of Establishment Clause violations,

which inflict an “erosion of religious liberties [that] cannot be

deterred by awarding damages to the victims of such erosion,”

City of St. Charles, 794 F.2d at 275, we are able to conclude that

where 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.

Appellees expressly disclaim any contention that “Estab-

lishment Clause violations can never constitute irreparable harm

sufficient to warrant a preliminary injunction.” Appellees’ Br.

30. They merely “urge the Court to reject a per se rule that

alleging an Establishment Clause violation, without anything

more, necessarily constitutes irreparable harm.” Id. But this

proposition fails for two reasons. First, we are unable to identify

the pivotal “anything more” that movants alleging an Establish-

ment Clause violation could offer in order to demonstrate

irreparable harm. In cases involving purported violations of

freedom of speech, association, religious exercise, or other

expressive First Amendment liberties, we are able to fashion,

and have fashioned, such a line-drawing element: movants must

demonstrate a likelihood that they will engage in the constitu-

tionally protected expressive conduct. But as noted, this notion

is not translatable to the First Amendment freedom from

government establishment of religion. The harm inflicted by

religious establishment is self-executing and requires no

attendant conduct on the part of the individual. It is unclear

what, exactly, movants alleging an Establishment Clause

violation could show to differentiate between establishments that

inflict irreparable harm and those that do not.

22

Second, and more significant, Appellees’ proposed ap-

proach would foreclose all possibility of preliminary injunctive

relief in Establishment Clause cases based on intangible harm,

even those involving the most manifest violations of the

Establishment Clause. Consider, for example, a state legisla-

ture’s decision, with gubernatorial approval, to erect an enor-

mous cross in front of the statehouse, on public property, using

public funds. The legislative history unambiguously reveals an

intent to raise the cross as a symbol of Christianity and to spread

Christian values among the polity. An offended resident would

have taxpayer standing to seek removal of the cross, cf. Flast v.

Cohen, 392 U.S. 83, 105-06 (1968), and would handily win a

permanent injunction to that effect. Under Appellees’ theory,

however, she could not possibly obtain a preliminary injunction

ordering removal of the cross during pendency of the litigation,

despite the certainty with which she would ultimately prevail on

the merits of her claim and the irreparability of the harm

inflicted upon her in the meantime. Appellees would have the

taxpayer allege something more than a patent violation of the

Establishment Clause; yet we cannot imagine what that could be.

The result would be an erosion of the very principles of religious

freedom the Establishment Clause serves to safeguard. See City

of St. Charles, 794 F.2d at 275 (“If preliminary injunctions were

not available in cases brought to enforce the establishment

clause, government might be able to erode the values that the

clause protects with a flood of temporary or intermittent infringe-

ments.”). We reject this position and instead hold that a party

alleging a violation of the Establishment Clause per se satisfies

the irreparable injury requirement of the preliminary injunction

calculus.8

8

This conclusion presupposes, of course, that the party has

standing to allege such a violation.

23

We stress that a finding of irreparable injury is but one of

four elements that comprise the preliminary injunction frame-

work. The mere allegation that the government is violating the

Establishment Clause may suffice to satisfy the irreparable harm

prong, but a preliminary injunction will not issue unless the

moving party also shows, on the same facts, a substantial

likelihood of success on the merits, that the injunction would not

substantially injure other interested parties, and that the public

interest would be furthered by the injunction. It is these other

prongs that will ultimately determine meritorious motions for

preliminary injunctions in the face of purported Establishment

Clause violations. Unsupported or undeveloped allegations of

government establishment, for example, while sufficient to make

out irreparable injury, will not withstand scrutiny concerning the

movant’s likelihood of success on the merits, thereby defeating

a request for a preliminary injunction. Likewise, demands for

preliminary relief that inflict untoward detriment on persons not

party to the case will meet a similar fate, as will motions that do

not further the public interest. Thus we do not believe that our

decision today in any way lessens the burden for parties seeking

preliminary injunctive relief against purported Establishment

Clause violations. It merely focuses greater attention on the

three other factors that indisputably enter into the preliminary

injunction determination.

Appellants allege that Appellees’ practice of retaining

overage Catholic chaplains constitutes a denominational

preference in violation of the Establishment Clause. If true,

which we assume is the case for purposes of the irreparable

injury prong, the government has, without anything more,

infringed upon Appellants’ freedom from government establish-

ment of religion, constituting irreparable harm. The district

court committed error in finding otherwise.

24

III

Having reached a conclusion contrary to the district court

with respect to Appellants’ irreparable injury, we must decide

whether to proceed with the remainder of the preliminary

injunction determination, as Appellants urge, or remand the case

to the district court, as Appellees insist. We believe the proper

course of action at this point is to remand to the district court.

When denying a preliminary injunction, a district court

“shall . . . set forth the findings of fact and conclusions of law

which constitute the grounds of its action.” Fed. R. Civ. P.

52(a). “It is of the highest importance to a proper review of the

action of a court in granting or refusing a preliminary injunction

that there should be fair compliance with Rule 52(a).” Mayo v.

Lakeland Highlands Canning Co., 309 U.S. 310, 316 (1940).

The district court here confined its analysis to determining

whether irreparable harm would visit Appellants without interim

relief. It expressly withheld consideration of the three other

factors that enter into the preliminary injunction calculus. See

Mem. Op. at 5 & n.2. Accordingly, the “conclusions of law” as

to these other factors that Rule 52(a) requires are not present.

See Fair Hous. in Huntington Comm. Inc. v. Town of Hunting-

ton, 316 F.3d 357, 364 (2d Cir. 2003); Hoechst Diafoil Co. v.

Nan Ya Plastics Corp., 174 F.3d 411, 423 (4th Cir. 1999)

(“Requiring trial courts to explain their injunction orders serves

at least two important purposes. First, it allows the parties to

better understand the reasons for the court’s actions. Second, a

written explanation of the district court’s reasoning permits an

appellate court to meaningfully review that decision.”); 9A

Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure § 2576 (2d ed. 1995) (“If the appellate court finds

that it cannot review the case meaningfully without findings and

conclusions, it may remand so that findings can be made.”). We

25

are therefore disposed to remand to the district court to pick up

where it left off.

We are aware that because our review of the legal findings

supporting a district court’s preliminary injunction determination

is de novo, the absence of legal findings does not necessarily

preclude us from undertaking appellate review. See LGS

Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150,

1155 (9th Cir. 2006). But our review of the district court’s

balancing of the four preliminary injunction factors and ultimate

decision to grant or deny such relief is for abuse of discretion,

and without any conclusions of law as to the three remaining

factors, we are unable to determine whether the district court

properly carried out this function. See Hoechst Diafoil, 174 F.3d

at 423. A remand would also effect greater development of the

remaining preliminary injunction factors, particularly Appel-

lants’ likelihood of success on the merits, which we believe

advisable. Indeed, in explicitly choosing not to address the three

other components, the district court noted that if later required

to turn to them, it would “likely benefit” from further elaboration

of certain arguments raised before it concerning the merits of

Appellants’ claim. Mem. Op. at 5 n.2. Both precedent and

prudence, therefore, counsel a remand to the district court so that

a “full understanding of the issues” may be attained. Six Clinics

Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th

Cir. 1997); cf. New Comm Wireless Servs., Inc. v. SprintCom,

Inc., 287 F.3d 1, 13 (1st Cir. 2002) (“Injunctive relief is, by its

very nature, fact-sensitive and case-specific. For that reason, the

court of appeals ordinarily will not uphold a preliminary

injunction on a ground that was not fully addressed by the trial

court.”).

26

IV

By alleging that Appellees are engaging in conduct that

violates the Establishment Clause, Appellants have satisfied the

irreparable injury prong of the preliminary injunction frame-

work. We therefore reverse the district court on this point,

vacate its denial of preliminary injunctive relief, and remand for

the court to carry out the remainder of the preliminary injunction

analysis. We affirm the district court’s denial of structural

injunctive relief, and we have no jurisdiction to rule on its denial

of partial summary judgment.

So ordered.