1 On April 17, 1996, the Secretary of
Labor
delegated authority to issue final agency decisions under the employee protection provisions of,
inter
alia, the environmental statutes involved in the instant complaint, and the implementing
regulations at
29 C.F.R. Part 24, to the newly created Administrative Review Board. Secretary's Order 2-96
(Apr. 17,
1996), 61 Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96 contains a comprehensive list
of the
statutes, executive order, and regulations under which the Board now issues final agency
decisions.
2 The docket number assigned to
this case while before the Office of Administrative Law Judges apparently refers to the Clean
Air Act, 42 U.S.C. § 7622. That statute was not referred to in the complaint filed in this
case, however, and has not otherwise been relied on by the Complainant in pursuing this cause of
action. In rendering his determination regarding the timeliness issue, the ALJ relied on the Safe
Drinking Water Act and noted that all the statutes cited by the Complainant contained similar
provisions regarding the time within which a complaint must be filed. R. D. and O. at 1 n.1.
3 In support of its motion to
dismiss
filed before the ALJ, the Tribe also contended that the doctrine of sovereign immunity applies to
the Tribe in this cause of action. Motion to Dismiss for Untimeliness and for Lack of Subject
Matter Jurisdiction at 8-21. In disposing of the complaint on the basis of the timeliness issue, the
ALJ did not reach the question of whether sovereign immunity applies to deprive the Secretary
of
Labor of jurisdiction in this matter. R. D. and O. at 5 n.2. Although Prybys urges that the
sovereign immunity question should be addressed in this review of the case, Complainant's Brief
at 3, the Tribe acknowledges that the issue need not be reached if the dismissal by the ALJ is
upheld, Respondent's Brief at 4.
4 The cause of action before the
court
in Georgia Power arose under Section 301 of the Labor Management Relations Act, 29
U.S.C.
§ 185, and was characterized by the court as a "hybrid" suit, i.e., filed
against
both an employer, for allegedly unfair discharge, and a union, for allegedly breaching its duty of
fair
representation. 786 F.2d at 1074. The Georgia Power court explained that a Section 301
claim
involves "separate, yet interdependent" allegations against an employer and a union
and that
thus the court had determined, in Proudfoot v. Seafarer's International Union, 779 F. 2d
1558
(11th Cir. 1986), vacating in part 767 F.2d 1538 (11th Cir. 1985), that these separate
causes of
action, for statute of limitations purposes, "'accrue simultaneously.'" 786 F.2d at
1074. Within
this context, the court, quoting from its Proudfoot decision, stated, "'By final action
we
mean the point where the grievance procedure was exhausted or otherwise broke down to the
employee's
disadvantage."' 786 F.2d at 1075. The foregoing reasoning is thus inextricably linked to
the unique
character of the "hybrid" complaint involved in Georgia Power.
5 We note, however, that several
court decisions support Prybys' contention that preliminary consultation with an attorney does
not provide
a proper basis for imputing that counsel's presumptive knowledge of a statute of limitations to
the
prospective client, Complainant's Brief at 16-17. As indicated supra, the affidavit
submitted by
Prybys states that he immediately sought legal assistance following receipt of the February 1,
1995 letter
from the Tribe, and that prior to engaging his current representative Prybys was advised by one
attorney
that he had at least one year in which to commence legal action against the Tribe. Prybys
affidavit at 6;
see R. D. and O. at 3. In challenging the ALJ's conclusion, Prybys asserts that merely
consulting
with an attorney is distinguishable, for purposes of the equitable tolling analysis, from the act of
actually
retaining an attorney. Complainant's Brief at 16-17. Although one of the decisions cited by the
ALJ,
Mitchellv. EG&G (Idaho), Case No. 87-ERA-22, Sec. Dec., July 22, 1993,
contains
dicta to the contrary, slip op. at 9-10, both Mitchell and Kent v. Barton Protective
Services,
84-WPC-2, Sec. Dec., Sept. 28, 1990, aff'd 946 F.2d 904 (11th Cir. 1991), cert.
denied,
112 S.Ct. 1284 (1992), involve facts indicating that more than a preliminary contact with an
attorney
was engaged in by the respective complainant in those cases. Mitchell, slip op. at 8-1
1; Kent,
slip op. at 8. The holdings in Mitchell and Kent are thus consistent with the
principle
that "not all contacts with an attorney are sufficient to impute constructive
knowledge."
Bass v. Burleigh and Associates, 727 F. Supp. 1030, 1032 and n.5 (M.D. La.
1989)(imputation of
constructive knowledge appropriate "only when the attorneyclient relationship is of some
significant
duration. " [citing Jacobson v. Pitman-Moore, Inc., 573 F.Supp. 565, 569 (D.
Minn.
1983)]).