                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                      July 21, 2005
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 04-51045
                                      Summary Calendar



       MARY J. COUNTS; JILL A. MARANGONI,

                                                           Plaintiffs-Appellants,

                                             versus

       EDMUNDO GUEVARA; UNITED STATES
       OF AMERICA,

                                                           Defendants-Appellees.


                    Appeal from the United States District Court for
                             the Western District of Texas
                            (USDC No. 3:01-CV-367-DB)
           _________________________________________________________


Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

       We affirm the district court’s dismissal of Counts’s suit for lack of subject matter

jurisdiction for the following reasons:




       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
1.   We find no clear error in the district court’s determination that, under Texas

     law, original defendant Edmundo Guevara was acting within the scope of

     his employment by the Federal Bureau of Investigation when he made the

     allegedly defamatory remarks that are the basis of this lawsuit. See

     Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577-79 (Tex.

     2002).

2.   Because Guevara was acting within the scope of his federal employment in

     making the remarks, the United States was properly substituted as a party in

     place of federal employee Guevara pursuant to the Federal Employees

     Liability and Reform and Tort Compensation Act of 1988 (Westfall Act).

     28 U.S.C. § 2679(d)(1)—(2). Pursuant to the Westfall Act, upon

     substitution, the case fell under the Federal Tort Claims Act (FTCA) 28

     U.S.C. § 2671 et seq.

3.   The claimed defamatory conduct of federal employee Guevara falls within

     the “libel and slander” exception to the FTCA divesting the court of subject

     matter jurisdiction over the United States. 28 U.S.C. § 2680(h).

4.   We note Appellants’ complaint of the district court’s conversion of the

     Government’s 12(b)(1) motion to dismiss to a Rule 56 motion for summary

     judgment. Because we find that the district court did not err in weighing

     the evidence related to the scope-of-employment issue under either

     standard, we do not reach this issue.

                                    2
Affirmed.




            3
