___________ No. 95-1860

___________ 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. *

___________ Submitted: November 17, 1995 Filed: December 4, 1995

___________ Before HANSEN, LAY, and MURPHY, Circuit Judges.

___________ PER CURIAM. Ronald J. Acquisto was dismissed fro m the Air Force in October 1991. He alleges that the Air Force refused to allow him to re-enlist because, in 19 88, he filed a complaint with the Inspector General, accusing hi s 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 t arnish 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 with hold . . . a favorable personnel action, as a reprisa l against a member of the armed forces for making or preparing a communicationto a Member of Congress or an Inspector General

. . . . 10 U.S.C. § 1034(b).

### A federal district court has authority un der 10 U.S.C. § 1552 1 

### to review the action of the Ai r Force Board in refusing to correct military records under the arb itrary and capricious standard. See Ch appell v. Wallace , 462 U.S. 296, 303 (1982). In the presen t case, Acquisto did not file hi s 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 correctiv e action by the board for correction of military records, th e Secretaryof the respective services, and the Secretary of th e Defense. 10 U.S.C. § 1034(g) states that "[u]pon the comple tion of all ad ministrative review . . . , the member or former member o f the armed forces . . . who made the allegation . . . , if no t satisfied with the disposition of the matter, may submit the matter to t he Secretary of Defense . . . [who] shall make a decision t o reverse or uphold the decision of the Secretary of the militar y depart ment concerned . . . ." In the Operating Procedures it i s stated that the "decision of the Secretary of Defense is final, " and the decision whether to uphold or reverse the decision of the Secretaryof the military unit involved lies in the Secretary o f Defense's "sole discretion." See 32 C.F.R. 98a. -2- On September 10, 1992, the Board concluded there was insufficien t eviden ce present to demonstrate the existence of probable error o r injustice, and refused to correct Acquisto's rec ords. Acquisto thereafter filed a complaint in federal district court under 10 U.S.C. § 1034 in whic h 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 th e ground that the Board's decision was not arbitra ry and capricious, and was based on substantial evidence. We have reviewed the statutory language, the legislative histor y, and administrative regula tions and hold that § 1034 does not provide Acquisto with any private cause of action, express or implied. See Cort v. Ash , 42 2 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 furthe r evide nce that Congress did not intend any private cause of action. Se e 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 judgmen t must be vacated; we remand with directions to the district court to dismis s the case for lack of subject matter jurisdiction.
A true copy.

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