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No. 95-1860

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Ronald J. Acquisto, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

United States of America, *

* [TO BE PUBLISHED]

Defendant-Appellee. *

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 Submitted: November 17, 1995

 Filed: December 4, 1995

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Before HANSEN, LAY, and MURPHY, Circuit Judges.

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PER CURIAM.

Ronald J. Acquisto was dismissed from the Air Force in October 1991.

He alleges that the Air Force refused to allow him to re-enlist because,

in 1988, he filed a complaint with the Inspector General, accusing his

commanding officer of fraud, waste, and mismanagement. He appealed to an

Air Force Board to correct his military records pursuant to 10 U.S.C.

§ 1552. Acquisto claimed before the Board that his commanding officer and

a civilian Air Force employee had conspired to tarnish his military record

in retaliation for his filing with the Inspector General. Acquisto claims

this violates 10 U.S.C. § 1034, which provides:

[n]o person may take . . . an unfavorable personnel action, or

withhold . . . a favorable personnel action, as a reprisal

against a member of the armed forces for making or preparing a

communication to a Member of Congress or an Inspector General

. . . . 

10 U.S.C. § 1034(b).
 A federal district court has authority under 10 U.S.C. § 1552 1

to review the action of the Air Force Board in refusing to correct

military records under the arbitrary and capricious standard. See

Chappell v. Wallace, 462 U.S. 296, 303 (1982). In the present

case, Acquisto did not file his third amended complaint under this

section of the statute. He alleges violation under 10 U.S.C.

§ 1034.

 Under 10 U.S.C. § 1034, Congress established a comprehensive 2

scheme for reviewing reprisal complaints authorizing corrective

action by the board for correction of military records, the

Secretary of the respective services, and the Secretary of the

Defense. 10 U.S.C. § 1034(g) states that "[u]pon the completion of

all administrative review . . . , the member or former member of

the armed forces . . . who made the allegation . . . , if not

satisfied with the disposition of the matter, may submit the matter

to the Secretary of Defense . . . [who] shall make a decision to

reverse or uphold the decision of the Secretary of the military

department concerned . . . ." In the Operating Procedures it is

stated that the "decision of the Secretary of Defense is final,"

and the decision whether to uphold or reverse the decision of the

Secretary of the military unit involved lies in the Secretary of

Defense's "sole discretion." See 32 C.F.R. 98a.

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On September 10, 1992, the Board concluded there was insufficient

evidence present to demonstrate the existence of probable error or

injustice, and refused to correct Acquisto's records. Acquisto thereafter

filed a complaint in federal district court under 10 U.S.C. § 1034 in which

he alleged the Board's denial of his appeal was arbitrary and capricious.1

The district court granted summary judgment to the United States on the

ground that the Board's decision was not arbitrary and capricious, and was

based on substantial evidence.

We have reviewed the statutory language, the legislative history, and

administrative regulations and hold that § 1034 does not provide Acquisto

with any private cause of action, express or implied. See Cort v. Ash, 422

U.S. 66, 78 (1974). We find it significant that Congress established only

an administrative remedy under 10 U.S.C. § 1034. We deem this further

evidence that Congress did not intend any private cause of action. See

2

Touche Ross & Co. v. Redington, 422 U.S. 560, 579-80 (1979). On this
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basis, we find that the district court's judgment granting summary judgment

must be vacated; we remand with directions to the district court to dismiss

the case for lack of subject matter jurisdiction.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.