UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Joseph Michael McGuinness, MCGUINNESS & PAR-
LAGRECO, Elizabethtown, North Carolina, for Appellants. William
C. Morgan, Jr., BROUGH & ASSOCIATES, Chapel Hill, North Car-
olina, for Appellee. ON BRIEF: Michael B. Brough, BROUGH &
ASSOCIATES, Chapel Hill, North Carolina; Tom Pollard, CITY OF
WILMINGTON, Wilmington, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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 appropri-
ated 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 merit-
based 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. Further-
more, the employees contended that the City should be constitution-
ally estopped from eliminating longevity pay, that the elimination of
longevity pay was violative of their occupational liberty in employ-
ment, 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 longev-
ity pay was dependent on annual funding. The point is further under-
scored 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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