Phillip Morris; David L. Tucker, Plaintiffs-appellants, v. the Police Civil Service Commission for the City Ofcharleston, and Its Members; Charles H. James, Iii; Haroldr. Neal; Robert D. Pennington; City of Charleston, Amunicipal Corporation; Charles R. Gardner, in His Officialcapacity As Mayor of the City of Charleston; the Chief Ofpolice of the City of Charleston, Defendants-appellees, 37 F.3d 1494 (4th Cir. 1994)

Appellants, Phillip Morris and Davis Tucker, two police officers with the City of Charleston, West Virginia, appeal the district court's grant of summary judgment to the Police Civil Service Commission (Commission) on Appellants' claim that a promotional eligibility list prepared in compliance with a federal consent decree violated state law. Finding no error, we affirm.

* To eradicate the effects of prior promotion practices determined to have a negative disparate impact on minority applicants, the City of Charleston entered into a consent decree governing hiring procedures. Brooks v. City of Charleston, C.A. Nos. 2:87-0645 and 2:87-0938 (S.D.W. Va. Aug. 7, 1989).¹  The decree modified the prior promotion practice by deleting a provision for a performance appraisal which formerly accounted for thirty-percent of an applicant's score. Instead, the decree required that promotions be based on an applicant's score on a written examination added to allowable time-in-service credit.

At the initiation of this suit, Appellants were ranked for promotion on the eligibility list developed in compliance with the decree, but both were passed over for promotions. Appellants sought to enjoin the Commission's continued use of that eligibility list on grounds that the list expired under state law after being used once for promotions. They asserted that the Commission was about to make promotions again off the same list. Appellants moved the district court to certify a question for decision by the West Virginia Supreme Court.²  That motion was denied by order dated December 21, 1992.

Both Appellants were subsequently promoted from the existing eligibility list. The Commission filed a motion for summary judgment arguing that the Appellants no longer presented a justiciable controversy. The district court granted summary judgment in favor of the Commission, and Appellants timely appealed.

II

Appellants argue that the district court erred in failing to certify a question for decision by the West Virginia Supreme Court. Certification of a question to state court rests "in the sound discretion of the federal court." Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974). We find that the district court did not abuse its discretion in declining to certify the question to state court. We also note that even if the court erred, such error was harmless because the district court correctly decided that Appellants lack standing to pursue their action in federal court.

Standing under Article III of the Constitution requires that the party seeking relief show that he "personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant;" that " 'the injury fairly can be traced to the challenged action, Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)); and, that ... 'the injury is likely to be redressed by a favorable decision,' " id. (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976)). The injury or threat of injury must be real and immediate, not conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983).

Appellants' standing to seek the requested injunction depends on whether they are currently suffering an injury or are likely to suffer future injury resulting from the Commission's use of an allegedly void eligibility list. During the pendency of this litigation, however, both Appellants were promoted from the eligibility list. Accordingly, they no longer suffer an ongoing injury.

Appellants argue that despite their promotions, there still remains a risk of future injury because at least one of them could be promoted in the future, and the Commission might continue to use the allegedly void eligibility list. This possibility, however, poses too many contingencies for the threat of injury to be more than hypothetical or conjectural. The possibility Appellants will not be promoted in the future because of the Commission's use of the current list is speculative. The possibility Appellants will be promoted in the future absent use of the current list is speculative as well, as is the possibility that the Commission will base future promotions on the current list. Appellants are unable to show the real and immediate threat of injury necessary to confer standing.³ 

We therefore affirm the orders of the district court denying Appellants' motion for certification of a question of state law and granting summary judgment in favor of the Commission. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.