* Pursuant to Local Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-20256

Summary Calendar

__________________

BEN P. KNIPE,

Plaintiff-Appellant

versus

BANK UNITED OF TEXAS, doing business as Commonwealth United

Mortgage; JOANN CAMPBELL; MIKE GALE,

Defendants-Appellees

______________________________________________

Appeal from the United States District Court for the

Southern District of Texas

(H-94-CV-4219)

______________________________________________

September 6, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

Appellant Ben P. Knipe appeals the dismissal of his

retaliation claim against appellees under 12 U.S.C. § 1831j, the

whistle-blower protection provision of the Financial Institutions

Reform, Recovery, and Enforcement Act (FIRREA). Knipe also appeals
2

the dismissal of his pendent breach of contract claim. Both claims

were dismissed on motion for summary judgment by order of the

district court (Atlas, J.), entered February 13, 1996. We affirm

for the following reasons.

Under Section 1831j, an insured bank may not discharge or

discriminate against an employee because he or she has provided

federal banking regulators with information about possible

violations of banking laws or regulations. The district court,

applying the correct standard on summary judgment, found that

appellant could not establish a claim under Section 1831j. 

First, the court found that Knipe did not complain to federal

regulators of the bank’s alleged illegal conduct until after he was

removed from the bank’s roster of appraisers. The court concluded

that the bank’s removal of Knipe from its rotation of appraisers

thus could not have been retaliatory. The record fully supports

the district court’s determination as to the sequence of events.

In deposition testimony, Knipe stated that he learned in late

December 1992 that he had been removed from the bank’s rotation of

appraisers on November 20, 1992. (Dep. of Ben P. Knipe, Record

Excerpts, Ex. A at 89) He testified that he did not contact the

Office of Thrift Supervision (OTS) to complain of alleged

misconduct by the bank until January or February of 1993. (Knipe

Dep. at 34) By his own testimony, therefore, Knipe could not have

been “discharge[d] or otherwise discriminate[d] against . . .

because [he] . . . provided information to any Federal Banking
3

agency.” 12 U.S.C. § 1831j. Although Knipe subsequently altered

his narrative, stating that he had first contacted the OTS in

December 1992, that date will not support a claim of retaliation

based on his allegation that the bank removed him from its list of

appraisers on November 20, 1992. (Aff. of Ben P. Knipe, Record

Excerpts, Ex. D, ¶ 6) 

We affirm the dismissal of appellant’s federal claim because

there is no genuine issue of material fact regarding Knipe’s claim

that the bank’s action was retaliatory. We need not address, and

express no opinion regarding, the district court’s alternative

holding that Knipe was an independent contractor rather than an

employee of the bank, and therefore was unprotected by the whistleblower statute. 

Finally, we affirm the dismissal of Knipe’s pendent contract

claim for the reasons set out in the district court’s opinion. A

thorough review of Knipe’s contract with the bank indicates that

Knipe was required to meet certain professional standards in

performing any appraisal work that the bank might ask him to do.

He was not guaranteed any particular volume of work, or indeed, any

work at all. There is no genuine issue as to whether the bank

breached its contract with Knipe by ceasing to ask him to perform

appraisal work.