110 F3d 60 Norris v. City

110 F.3d 60

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
Perkins, Plaintiffs-Appellants,
CITY of Wilmington, North Carolina, a municipal corporation,

No. 96-1101.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1997.
Decided April 7, 1997.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

ARGUED: Joseph Michael McGuinness, MCGUINNESS & PARLAGRECO, Elizabethtown, NC, for Appellants. William C. Morgan, Jr., BROUGH & ASSOCIATES, Chapel Hill, NC, for Appellee. ON BRIEF: Michael B. Brough, BROUGH & ASSOCIATES, Chapel Hill, NC; Tom Pollard, CITY OF WILMINGTON, Wilmington, NC, for Appellee.

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.



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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 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,