UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FURMAN WAYNE NORRIS; WILLIAM

BERNARD PRESCOTT; THOMAS DONALD

EASON, JR.; CARL DAREN STRAWN;

JAMES DANIEL VARRONE; GEORGE W.

PERKINS; SOUTHERN STATES POLICE

BENEVOLENT ASSOCIATION,

INCORPORATED; MELISSA BAKER

No. 96-1101

PERKINS,

Plaintiffs-Appellants,

v.

CITY OF WILMINGTON, NORTH

CAROLINA, a municipal corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Fox, Chief District Judge.

(CA-94-134-7-F1)

Argued: March 6, 1997

Decided: April 7, 1997

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Joseph Michael McGuinness, MCGUINNESS & PARLAGRECO, Elizabethtown, North Carolina, for Appellants. William
C. Morgan, Jr., BROUGH & ASSOCIATES, Chapel Hill, North Carolina, for Appellee. ON BRIEF: Michael B. Brough, BROUGH &

ASSOCIATES, Chapel Hill, North Carolina; Tom Pollard, CITY OF

WILMINGTON, Wilmington, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

On November 21, 1971, the City of Wilmington, North Carolina

enacted an ordinance entitled "Annual Longevity Pay." The ordinance

provided in pertinent part, "[o]n December 1, 1971, and thereafter as

budgeted by the City Council, annual longevity pay will be provided

to all full-time, permanent employees of the City." Thereafter, from

1971 through 1993, annual longevity pay was included as a line item

in each City budget. During those years, the City Council appropriated funds for payment of longevity pay. The employees of the City

came to expect that such pay would continue, hopefully until death,

retirement or termination.

In June, 1994, however, the City Council adopted an amendment

which eliminated longevity pay and instead substituted a merit-based

plan which called for a 3-1/2% upward adjustment in salary for each

employee and up to a 3% raise based on the application of the meritbased plan. Under the amendment, the City would absorb the entire

increase in health insurance costs assessed against employees.

As a result of the City Council's action, not surprisingly, several

employees sued the City of Wilmington wanting longevity pay to

continue to be paid. The employees argued that the City's elimination

of longevity pay constituted breach of contract in violation of the

Contract Clause of the United States Constitution, violated both their

substantive and due process rights under the United States and North

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Carolina Constitutions, and denied them equal protection. Furthermore, the employees contended that the City should be constitutionally estopped from eliminating longevity pay, that the elimination of

longevity pay was violative of their occupational liberty in employment, and a breach of the covenant of good faith and fair dealing.

None of the employees' contentions, however, deal with the critical

statutory language of the longevity statute, "as budgeted." The "as

budgeted" language clearly demonstrates that the payment of longevity pay was dependent on annual funding. The point is further underscored by the longevity pay's inclusion as a line item in each City

budget from 1971-1993.

Having considered the several arguments, we are satisfied that the

district court's grant of summary judgment in favor of the City of

Wilmington followed a correct application of law. Norris v. City of

Wilmington, No. 7:94-CV-134-F1. The judgment is, accordingly,

AFFIRMED.

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