Chaplaincy of Full Gospel Churches v. United States Navy

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, non-

liturgical Protestant, and Special Worship. Id. at 1172.

Plaintiffs, current and former military chaplains, are “non-

liturgical 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 consistently-

implemented 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.

13

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 decision-

making 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.