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.