MEMORANDUM OPINION AND ORDER

JAMES C. FRANCIS IV, United States Magistrate Judge

This case concerns an action for personal injury against Morris Heights Health Center ("Morris Heights") and Dr. Brian Hun Liao, a dentist. The plaintiff, Evette Nin, alleges two causes of action against Morris Heights: medical malpractice and failure to obtain informed consent. The United States, on behalf of Morris Heights, now moves under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (1) to substitute the United States as defendant in place of Morris Heights and (2) upon substitution, to dismiss all claims against the United States for lack of subject matter jurisdiction. The parties have agreed to the disposition of this case by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c). For the reasons that follow, the Government's motion is granted.

Background

On September 21, 2001, Evette Nin initiated a medical malpractice action in the Supreme Court of the State of New York, Bronx County. (Verified Complaint, attached as Exh. A to Notice of Removal and Substitution ("Notice of Removal")). Ms. Nin named Morris Heights and Dr. Liao as defendants. On April 9, 2002, Ms. Nin filed an amended summons and complaint. (Amended Verified Complaint ("Am. Compl."), attached as Exh. B to Notice of Removal). Ms. Nin alleges that Morris Heights "departed from accepted and proper dental practices and standards and was negligent and committed malpractice." (Am. Compl., ¶ 7). She further alleges that Morris Heights failed to obtain her informed consent with respect to the dental treatment. (Am. Compl., ¶¶ 11-12). According to Ms. Nin, the treatment period in which the dental malpractice occurred ran from May 18, 2000, through November 2, 2000. (Affirmation of Debra S. Reiser dated Dec. 12, 2002 ("Reiser Aff."), ¶ 7). On October 18, 2002, Ms. Nin's action was removed to this Court pursuant to the Public Health Service Act, 42 U.S.C. § 233(c), and the Federal Tort Claims Act ("FTCA"), 42 U.S.C. § 2679(d)(2). (Notice of Removal). The United States then filed the instant motion.

DISCUSSION

In considering a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the party asserting jurisdiction has the burden of proving it. Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) (citingRobinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)); see also In re Joint Eastern Southern District Asbestos Litigation, 14 F.3d 726, 730 (2d Cir. 1993). Where subject matter jurisdiction is challenged through a Rule 12(b)(1) motion, evidentiary materials beyond the pleadings may be taken into account. See Kamen v. American Telephone Telegraph Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Consideration of such documents does not convert the Rule 12(b)(1) motion into a motion for summary judgment under Rule 56. Id.

In considering a motion to dismiss under Rule 12(b)(6), the material allegations of the complaint are accepted as true, all reasonable inferences are drawn in favor of the plaintiff, and the motion must be denied unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The issue in a Rule 12(b)(6) motion is not the likelihood of recovery but whether the plaintiff has met the burden of alleging facts that are not impossible to prove and that state a legally cognizable claim. Chance, 143 F.3d at 701.

A. Federal Tort Claims Act

1. The United States as Proper Party

Under the Public Health Service Act, suit against the United States is the sole remedy for damages "for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment." 42 U.S.C. § 233(a); see also Bueno v. Sheldon, No. 99 Civ. 10348, 2000 WL 565192, at *2 (S.D.N.Y. May 9, 2000). Section 233(a) makes the FTCA the exclusive vehicle for such actions. 42 U.S.C. § 233(a). The FTCA, in turn, provides in pertinent part that it is the exclusive remedy for any claim against the United States "arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 2679(b)(1). Section 2679 thus "provides government employees with immunity against claims of common-law tort." Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991). The definition of an "employee of the government" includes "officers or employees of any federal agency" and "persons acting on behalf of a federal agency in an official capacity." 28 U.S.C. § 2671.

In accordance with 42 U.S.C. § 233(c), certification by the Attorney General or his designee prompts the removal of a civil action commenced in state court to the United States district court, and "the proceeding is deemed a tort action brought against the United States under the provisions of title 28 and all references thereto." 42 U.S.C. § 233(c). United States Attorneys "are authorized to make the certifications provided for in . . . 28 U.S.C. § 2679(d) . . . and 42 U.S.C. § 233(c) . . . with respect to civil actions or proceedings brought against Federal employees in their respective districts." 28 C.F.R. § 15.3(a). The law further provides that upon certification and removal, the "United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(2).

Morris Heights receives funding from the United States Department of Health and Human Services pursuant to the Public Health Services Act, 42 U.S.C. § 201. (Notice of Removal, ¶ 5). Morris Heights was deemed eligible for FTCA malpractice coverage effective June 23, 1996, and this coverage has continued without interruption. (Declaration of Richard G. Bergeron dated April 9, 2002 ("Bergeron Decl."), attached as Exh. C to Notice of Removal, ¶ 5). Assistant Surgeon General Marilyn H. Gaston notified Morris Heights of its eligibility for FTCA malpractice coverage as a United States Public Health Service employee in a letter dated June 21, 1996. (Notice of Removal, ¶ 5; Malpractice Liability Coverage Letter from Assistant Surgeon General Marilyn H. Gaston, M.D., dated June 21, 1996, attached as Exh. 1 to Bergeron Decl.). The United States Attorney has certified that Morris Heights was acting within the scope of employment with respect to the acts or omissions that are alleged to have occurred in this case. Specifically, United States Attorney James B. Comey deemed Morris Heights and its employees to be employees of the federal government, effective June 23, 1996, for the purposes of Section 233 of the Public Health Services Act. (Certification of Scope of Employment Under 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d) dated Oct. 7, 2002, attached as Exh. D to Notice of Removal).

Ms. Nin does not challenge the certification of Morris Heights. (Defendant Morris Heights Health Center's Reply Memorandum of Law in Support of Its Motion to Substitute the United States as Defendant and to Dismiss the Complaint as Against the United States, at 3). Therefore, her exclusive remedy lies in an action against the United States. Under these circumstances, the substitution of the United States as the defendant is automatic. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995);Robinson v. Marano, 79 F. Supp.2d 96, 97 (N.D.N.Y. 2000). Therefore, the Government's motion for substitution is granted.

2. Jurisdiction

"A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) Ms. Nin is unable to carry this burden.

Exhaustion of administrative remedies is a jurisdictional prerequisite under the FTCA. See McNeil v. United States, 508 U.S. 106, 113 (1993);Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). 28 U.S.C. § 2675(a) provides:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.

Ms. Nin neither presented a claim to the Department of Health and Human Services ("HHS") nor was her claim finally denied by that agency at the time she filed the instant action.

Nevertheless, Ms. Nin asserts that "all administrative remedies have been exhausted under the Federal Tort Claims Act." (Reiser Aff., ¶ 25). She contends that she fulfilled this requirement by submitting her state court complaint to HHS since "the Department of Health and Human Services received a copy of the state court Complaint detailing the Complainant's cause of action and thereby providing notice almost eight months ago." (Reiser Aff., ¶ 10). Ms. Nin reasons that since she "has never received any correspondence from that agency" regarding the state complaint, the lack of any communication regarding the lawsuit "equates with a final denial" of the complaint. (Reiser Aff., ¶ 10). "The filing of a civil action, however, is not a substitute for the filing of a proper administrative claim." Gonzalez v. Fallon, No. 98 Civ. 3505, 1998 WL 879692, at *3 (S.D.N.Y. Dec. 16, 1998).

The FTCA requires the filing of an administrative claim with the appropriate agency prior to initiating a lawsuit. Ms. Nin commenced her lawsuit on September 21, 2001, and no administrative claim was filed prior to that date. Rather, the plaintiff first submitted an administrative claim in a letter dated October 24, 2002 and filed with the United States Department of Commerce. (Reiser Aff., ¶ 21 Exh. G). This claim letter was returned to Ms. Nin with a handwritten notation indicating that she had addressed it to the wrong agency. She then filed a second claim with the Department of Health of Human Services. (Reiser Aff., ¶ 24). However, this claim was filed on December 11, 2002, well after she had commenced the instant action. (Reiser Aff., ¶ 24 Exh. H). A lawsuit cannot be instituted until the agency denies the claim or until six months have passed without a final disposition. 28 U.S.C. § 2675(a).

"The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." McNeil, 508 U.S. at 113. Ms. Nin's failure to exhaust her administrative remedies therefore precludes an FTCA claim at this time. "In the absence of such compliance, a district court has no subject matter jurisdiction over the plaintiff's claim." In re "Agent Orange" Product Liability Litigation, 818 F.2d 210, 214 (2d Cir. 1987); Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983). In Kelley v. United States, 568 F.2d 259 (2d Cir. 1978), the Second Circuit addressed the situation where a plaintiff initiated a lawsuit in state court within the appropriate time frame for filing an administrative claim and was unaware of a potential substitution of a named defendant by the United States in the case. The court held that under such circumstances a tort action against the United States should not be dismissed for failure to file an administrative claim where the statute of limitations for filing such a claim had already expired. Id. at 262-68. However, the reasoning in Kelley was effectively overruled by the 1988 amendments to the FTCA.

After Kelley was decided, Congress amended the FTCA with the passage of the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the "Westfall Act." See 28 Pub.L. No. 100-694, 102 Stat. 4563 (1988). The Westfall Act amended the FTCA in two relevant respects. First, it provided that actions removed from state court "shall be subject to the limitations and exceptions applicable" to actions originally brought in federal court pursuant to 28 U.S.C. § 1346(b). 28 U.S.C. § 2679(d)(4). One of the limitations made applicable to removed cases by the Westfall Act is the exhaustion requirement of § 2675(a). Bueno, 2000 WL 565192, at *3. Second, the Westfall Act protected plaintiffs whose claims are dismissed for failure to meet exhaustion requirements by providing that such a claim shall be deemed timely presented if "the claim would have been timely had it been filed on the date the underlying civil action was commenced" and "the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action." 28 U.S.C. § 2679(5). The 1988 statutory changes thus protected plaintiffs who initiated suit in state court without realizing that the defendant was a federal entity. Bueno, 2000 WL 565192, at *3; see also Gonzalez, 1998 WL 879692, at *3 (holding that the statutory changes codified at 28 U.S.C. § 2679(5) "overruled the reasoning of Kelley"); Filaski v. United States, 776 F. Supp. 115, 116-117 (E.D.N.Y. 1991) (same). But see Davis v. Geneva B. Scruggs Community Health Care Center, Inc., No. 97 CV-0715E(M), 1998 WL 401649, at *2.3 (W.D.N.Y. June 29, 1998) (finding that Kelley remains good law).

The failure to comply with the exhaustion requirement of § 2675(a) thus deprives this Court of subject matter jurisdiction over Ms. Nin's complaint at the present time. Upon a denial of the claim, or a failure of the agency to act upon the claim within six months of its presentation, the plaintiff may initiate a new action against the United States including allegations of compliance with § 2679(d)(5). See Filaski, 776 F. Supp. at 118; see also Gonzalez, 1998 WL 879692, at *4

CONCLUSION

The Government's motion to substitute the United States and to dismiss Ms. Nin's claims against it without prejudice is granted. Because the claims against Dr. Liao remain viable, the case shall not be closed.

SO ORDERED.