This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-96-502

Thomas P. Hamilton,
Relator,

vs.

Metropolitan Council,
Respondent,

Commissioner of Department of Veterans Affairs,
Respondent.

Filed August 27, 1996
Affirmed
Huspeni, Judge

Department of Veterans Affairs

Jesse Gant III, Gant Law Office, 915 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for relator)

Jay M. Heffern, 230 East Fifth Street, St. Paul, MN 55101-1634 (for respondent Metropolitan Council)

Matthew E. Johnson, Smith Parker, P.L.L.P., 808 Colwell Building, 123 North Third Street, Minneapolis, MN 55401 (for respondent Metropolitan Council)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Holtan, Judge. 1

U N P U B L I S H E D O P I N I O N

HUSPENI , Judge
The Commissioner of Veterans Affairs dismissed a petition for relief because the statute of limitations had run. Relator challenges the application of the statute to the Veterans Preference Act. Because we agree with the Commissioner of Veterans Affairs that the statute of limitations applies in this matter and we find that relator's petition was not brought within the time permitted under that statute of limitations, we affirm.
FACTS

The Veterans Preference Act provides that a veteran discharged under honorable circumstances may be removed from public employment only "for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing." Minn. Stat. §(1994). Upon receiving such notice, a veteran has 60 days to request a hearing, and failing to make such a request constitutes waiver of the right to a hearing and all other available legal remedies. Id. If rights granted by the Act are denied, a veteran may petition the Commissioner of Veterans Affairs for an order directing the agency to grant such relief as is justified. Minn. Stat. §subd. 1 (1994).
Relator Thomas P. Hamilton was discharged from his employment with the Metropolitan Waste Control Commission (MWCC) on December 14, 1977. He did not receive notice of the right to a hearing under the Veterans Preference Act. Upon reading a newspaper advertisement in September 1994, he became aware that he was denied the rights granted by the Act. He filed a petition for relief with the Commissioner on September 9, 1994.
In August 1995, this court released Johnson v. County of Anoka which held that petitions under the Veterans Preference Act are subject to Minn. Stat. §§and 541.05, the six-year statute of limitations. 536 N.W.2d 336, 339 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995). The MWCC then requested that Hamilton's petition be dismissed based on Johnson . The Commissioner dismissed Hamilton's petition because it was filed more than six years after the cause of action accrued.
D E C I S I O N

I. Standard of Review
A decision from the Commissioner is reviewed to determine whether it was arbitrary and capricious and without substantial support in the record. AFSCME Council 96 v. Arrowhead Regional Corrections Bd. , 356 N.W.2d 295, 299 (Minn. 1984). The party seeking review on appeal has the burden of proving that an agency decision is affected by some error of law. Markwardt v. State Water Resources Bd. , 254 N.W.2d 371, 374 (Minn. 1977). In considering questions of law, this court is "not bound by the decision of the agency and need not defer to agency expertise." St. Otto's Home v. Minnesota Dep't of Human Servs. , 437 N.W.2d 35, 39-40 (Minn. 1989) (citations omitted). In particular, this court is not bound by an agency's determination on matters of statutory construction. Arvig Tel. Co. v. Northwestern Bell Tel. Co. , 270 N.W.2d 111, 114 (Minn. 1978).
II. Application of Statute of Limitations to Veterans Preference Act
Actions based on liability created by statute must be commenced within six years of the time when the cause of action accrued, unless a different limitation is prescribed by the statute. Minn. Stat. §§ 541.01 andsubd. 1(2) (1994). Hamilton argues, however, that the six-year statute of limitation does not apply to the Veterans Preference Act. We cannot agree.
This court recently addressed the precise issue of the application of the statute of limitations and cases arising prior to the Veterans Preference Act in Johnson . 536 N.W.2d at 338. Johnson was removed from employment with the County of Anoka but did not receive notice of his rights under the Veterans Preference Act. Id. Nine years later, he filed a petition for relief with the Commissioner. Id. The County argued that Johnson's petition was barred by the six-year statute of limitation found in Minn. Stat. § 541.05. Id. at 338-39. This court agreed, holding that "the six-year limitations period applies to the Veterans Preference Act." 536 N.W.2d at 339. This court recognized that justice may not have been served in that case because Johnson did not receive his veterans preference rights, but noted that "public policy dictates that, at some point, these matters need closure." Id.
The Johnson case is directly on point. Both that case and this were initiated to enforce veterans preference rights. Neither Johnson nor Hamilton received notice of such rights at the time of his removal from public employment. Both filed petitions for relief more than six years after removal (nine years in Johnson's case and seventeen years in Hamilton's case).
Hamilton asks this court to overrule or modify Johnson . We must decline that invitation. First, the Johnson court addressed, albeit indirectly, Hamilton's argument that the 60-day period acts as the statute of limitation for the Act and that it begins to run only when the employer provides notice of those rights. The Johnson court stated that the Veterans Preference Act does not contain a statute of limitations provision. 536 N.W.2d at 338. Were we to apply the 60-day provision as relator argues, claims for dismissals that took place decades ago would remain viable and, arguably, undermine the purpose of statutes of limitation which is to force the exercise of a right of action within a reasonable time so the defendant has a fair opportunity to prepare his defense. See Swenson v. Emerson Elec. Co. , 374 N.W.2d 690, 696 (Minn. 1985), cert. denied , 476 U.S. 1130 (1986) (citations omitted). It is inequitable for a claim to be asserted after the passage of a reasonable amount of time during which the defendant believes no claim exists. Karels v. American Family Mutual Ins. Co. , 371 N.W.2d 617, 619 (Minn. App. 1985), aff'd , 381 N.W.2d 441 (Minn. 1986) (citations omitted). In Johnson , this court recognized these policy implications as we do again here.
Hamilton also argues that Johnson is erroneous because a petition to the Commissioner is an administrative proceeding, not an "action," and therefore the six-year statute of limitation does not apply. We find no merit in this argument. "[A]ctions" that are based on liability created by statute are subject to the six-year limitation period. Minn. Stat. § An action is "any proceeding in any court of this state" and relates only to judicial proceedings within the judicial branch. Minn. Stat. §(1994); Har Mar, Inc. v. Thorsen & Thorshov, Inc. , 300 Minn. 149, 153, 218 N.W.2d 751, 754 (1974).
The Veterans Preference Act provides two types of relief for a veteran who is denied benefits under the Act. First, the Act provides for an action in district court seeking a writ of mandamus. Minn. Stat. §(1994). Second, the Act allows the aggrieved veteran to petition the Commissioner for relief. Minn. Stat. §(1994). The six-year limitation period applies to an action for a writ of mandamus because a statute creates the liability, it is an action within the judicial branch, and no other limitation period is provided in the statute. It would be unreasonable to assume that the legislature intended that the limitation period would apply to the mandamus remedy, but not the administrative remedy. If such were the case, the limitation period could simply be avoided by pursuing the administrative remedy if an employer did not provide notice. Both the administrative remedy and the judicial remedy of the Veterans Preference Act must be subject to the six-year statute of limitation.
Hamilton also argues that Young v. City of Duluth is dispositive of this case. 386 N.W.2d 732 (Minn. 1986). In that case, the court stated that
[u]nder the Act, if no notice is given to the veteran, no time limitation for the commencement of a hearing or writ of mandamus begins to run. It is immaterial whether a veteran is aware of his or her preference rights under the Act.

Id. at 738. Hamilton claims that, based on this language, no time limit can bar a claim until notice is given to the veteran. We disagree. Young did not address the statute of limitations issue. 2 It addressed only the 60-day time limitation provided by the Act itself. Thus, Young does not control in this case regarding Minn. Stat. §§and 541.05.
Finally, Hamilton cites a number of cases to support his argument that the six-year limitation period cannot apply to the Veterans Preference Act. None of the cases, however, is directly on point, because none involves the Veterans Preference Act. Thus, they cannot control the outcome of this appeal. See Har Mar , 300 Minn. at 149, 218 N.W.2d at 751 (arbitration proceedings); Matter of Wage and Hour Violations of Holly Inn, Inc. , 386 N.W.2d 305 (Minn. App. 1986) (administrative proceeding for minimum wage violations); Bednarek v. Bednarek , 430 N.W.2d 9 (Minn. App. 1988) (administrative action to intercept tax refund for child support arrearages); Guthmiller v. Department of Human Service , 421 N.W.2d 469 (N.D. 1988) (administrative action to intercept tax refund for child support arrearages); Latrielle v. Michigan State Bd. of Chiropractic Examiners , 98 N.W.2d 611 (Mich. 1959) (administrative proceeding to revoke chiropractor's license).
While we recognize, as did the court in Johnson , that justice may not have been served, the holding in Johnson must control our decision here.
Affirmed.


1
  • *
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

2 Also, as noted in a footnote in Johnson , 536 N.W.2d at 339 n.2, the petition in Young was brought within two years of termination of employment. Young , 386 N.W.2d at 734.