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.
2

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 
3

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 
4

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. 
5

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 
7

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’ 
8

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 
9

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 
10

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 
11

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 
12

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. 
14

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, 
15

¶ 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 
16

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.
17

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.