United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 95-4249

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Johnnie L. Ruth, *

*

Appellant, *

*

v. * Appeal from the United

States

* District Court for the 

Togo D. West, Jr., Secretary, *

Eastern District of Arkansas.

Department of the Army, *

* [UNPUBLISHED]

Appellee. *

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 Submitted: June 4, 1997

 Filed: June 9, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

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PER CURIAM.

Johnnie L. Ruth appeals the district court's

dismissal of his action under Title VII, 42 U.S.C. §

2000e et seq., for failure to exhaust administrative

remedies. We reverse and remand for further proceedings

in the district court.

Ruth, who is black, began working as a security guard

for the Army at the Pine Bluff Arsenal in 1980. On March
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22, 1991, he was terminated for attempted theft of

government property and willful use of a government

vehicle for other than official 
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purposes. Ruth timely pursued administrative remedies

with the agency and the Merit Systems Protection Board

(MSPB), both of which denied relief. On November 7,

1994, Ruth filed a timely petition with the EEOC for

review of the MSPB decision. On January 19, 1995--73

days after filing his petition--Ruth filed this action

against the Secretary of the Department of the Army,

claiming he had been discharged based on his race. 

Defendant moved for dismissal or summary judgment.

Ruth moved to amend his pro se complaint, in part to

include a February 1995 right-to-sue letter from the

EEOC. The district court denied Ruth's motion and

dismissed the complaint for failure to exhaust

administrative remedies, as Ruth had filed his district

court action before receiving a right-to-sue letter or

waiting the required 180 days from the date of filing

with the EEOC.

We review this dismissal de novo. See McAdams v.

Reno, 64 F.3d 1137, 1141 (8th Cir. 1995). Federal

employees asserting Title VII claims must exhaust their

administrative remedies before filing a federal court

action, and if they choose to proceed with certain

optional administrative remedies, they must exhaust their

claims in that forum before filing a civil action. See

id. at 1141-42. A federal employee may file a civil

action after 180 days from the date of filing with the

EEOC, see 29 C.F.R. § 1614.310(i) (1995), or within 30

days of receiving notice that the EEOC concurs with the

MSPB, see 29 C.F.R. § 1614.310(d) (1995).

Although Ruth mistakenly filed his federal action

before the expiration of his 180-day EEOC waiting period,
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we hold that the mistake was cured by Ruth's receipt of

a right-to-sue letter before the case was dismissed. We

have previously held, in the context of an employee suing

a private employer, that the failure to obtain a rightto-sue letter prior to the commencement of a suit is a

curable defect, cured by the subsequent receipt of a

right-to-sue letter. Jones v. American State Bank, 857

F.2d 494, 499-500 (8th Cir. 1988) (relying on Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393 
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(1982)); see also Edwards v. Department of the Army, 708

F.2d 1344, 1346-47 (8th Cir. 1983) (applying Zipes to

former federal employee).

We decline to determine the merits of defendant's

summary judgment motion in the first instance. See Pace

v. Moriarty, 83 F.3d 261, 263 (8th Cir. 1996).

Accordingly, we reverse and remand for further

proceedings.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH

CIRCUIT.