The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff John Sullivan, a member of Congress representing the First District of Oklahoma, filed this action on July 18, 2005, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671--2680 (2000), for injuries to Plaintiff arising from one count of negligence and one count of res ipsa loquitur negligence by Defendants Renoard Moore, Scott Humphrey, and the United States of America. Defendants Moore and Humphrey have been replaced as Defendants by the United States. See dkt. entry  (Notice of Substitution of the United States as Sole Defendant). The case is currently stayed. Presently before the Court is  Defendant United States' Renewed Motion to Dismiss, filed on March 7, 2007. On March 19, 2007, Plaintiff filed an Opposition. Based on the aforementioned filings, the relevant statutes and case law, and the history of the case, the Court shall GRANT  Defendant United States' Renewed Motion to Dismiss, and DISMISS the instant case.
On July 23, 2003, at approximately 1:00 p.m., Plaintiff was a passenger in a vehicle driven by Elizabeth Bartheld, a member of his staff. Compl. ¶ 12; Def.'s Mem. to Dismiss/Stay at 3--4 & Ex. 1 (Claim for Damage, Injury, and Death (Supplemental Statement at 1)). Plaintiff states that he was returning to the Cannon House Office Building, where he has an office, after giving a speech to a private group in Georgetown in Washington, DC. Compl. ¶¶ 1, 12, 14. The vehicle in which Plaintiff was traveling approached the security stop at the South Barricade of the Cannon House Office Building. Compl. ¶ 13; Def.'s Mem. to Dismiss/Stay at 3.
According to Plaintiff, after verifying the passengers' identities, Officer Humphrey motioned by hand to Ms. Bartheld to proceed through the barrier, at which point the security barrier was lowered and the light indicating access was activated. Compl. ¶¶ 14, 15. Plaintiff contends that after passing the first barrier, the vehicle was approaching the second barrier when Officer Humphrey used an unclear hand signal to inform Officer Moore to keep the second barrier lowered while the vehicle was proceeding. Id. ¶ 18. Officer Moore was responsible for raising and lowering the security barrier and was allegedly talking on a cell phone and "not paying full time and attention" to his duties while the vehicle was progressing through the barriers. Id. ¶¶ 16, 18. At the time the vehicle approached the second barrier, Officer Moore raised the security barrier, striking the front bumper and under carriage of the vehicle. Id. The collision resulted in the vehicle's airbags deploying, thereby injuring Plaintiff. Id. ¶¶ 20--22; Def.'s Mem. to Dismiss/Stay. at 3--4 & Ex. 1 (Claim for Damage, Injury, and Death (Supplemental Statement at 2-3)). Plaintiff was taken to the George Washington University Medical Center with abrasions to his face and serious injury to his left eye. See Def.'s Mem. to Dismiss/Stay at Ex. 1 (Claim for Damage, Injury, and Death (Supplemental Statement at 3)).
Plaintiff states that his accident-related injuries are permanent and disabling, and that he continues to experience pain, suffering, and economic loss as a result. Compl. ¶¶ 22--23.
Defendant filed its original Motion to Dismiss, or Alternatively, for a Stay, on October 14, 2005. Defendant moved to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction or pursuant to Rule 12(b)(6) for failure to state claim upon which the Court may grant relief, premised upon the argument that Plaintiff, under the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8101, et seq., must first file a grievance against the Government with the Secretary of Labor ("Secretary") prior to bringing suit in federal court. Alternatively, Defendant moved for a stay to provide Plaintiff an opportunity to file such a claim, pursuant to FECA, for injuries allegedly sustained.
On June 22, 2006, the Court issued an Order and Memorandum Opinion, denying without prejudice Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) but granting Defendant's Motion for a Stay. The Court indicated that
[i]f after Plaintiff submits his claim to the Department of Labor, the Secretary then determines that Plaintiff's claim is covered by the FECA, that decision is binding on the Court such that the instant action would be dismissed upon notice to the Court. See Daniels-Lumley [v. United States], 306 F.2d [769,] 770 [(D.C. Cir. 1962)]; see also McDaniel v. United States, 970 F.2d 194, 198 (6th Cir. 1992) ("if the employee was injured in the performance of duty, the Secretary's decision regarding coverage will be binding on the court, regardless of whether compensation is actually awarded.").
On February 7, 2007, a  Joint Status Report was filed, indicating that "[t]he Department of Labor on November 13, 2006, notified Plaintiff that his claim pursuant to FECA was accepted. Pursuant to this notification, Plaintiff timely submitted his claims for compensation."  Joint Status Report at 1.
On March 7, 2007, Defendant filed  Defendant United States' Renewed Motion to Dismiss, which is presently pending before the Court. Defendant argues that because "[o]n November 28, 2006, the U.S. Department of Labor accepted plaintiff's FECA claim[,]" "[a]ccordingly, consistent with this Court's June 22, 2006 memorandum opinion, the FECA and pertinent case law, this suit should be dismissed." Def.'s Renewed Mem. to Dismiss at 3. Defendant attaches to its Motion to Dismiss a letter from the U.S. Department of Labor dated November 28, 2006, indicating that Plaintiff's "timely claim under the Federal Employees' Compensation Act (FECA) for injuries to [Plaintiff's] left eye on July 23, 2003 has been accepted." Id., Ex. 1 (Letter granting FECA coverage).
On March 19, 2007, Plaintiff filed  Plaintiff's Response to Defendant's Renewed Motion to Dismiss. In Plaintiff's Response, Plaintiff indicates that as "Plaintiff has not received a penny to date,"
Plaintiff does not object to dismissal of this matter without prejudice. Plaintiff does object to Defendant's request that this matter be dismissed with prejudice. In the event that Plaintiff's claims are not paid, or later denied, ...