Unpublished Disposition, 911 F.2d 738 (9th Cir. 1990)

MEMORANDUM^** 

Zelma Frazier appeals pro se the district court's order granting the Railroad Retirement Board's (RRB) motion to dismiss Frazier's action for lack of jurisdiction and, alternatively, on res judicata grounds. Frazier contends that the district court had subject-matter jurisdiction over her action pursuant to 28 U.S.C. § 1331 and that previous dismissals of her action for lack of jurisdiction were not dismissals on the merit and hence without res judicata effect. Frazier also appeals the district court's dismissal of her motion for summary judgment as moot, its determination that she was a vexatious litigant, and its order that in any future action, Frazier must certify, under penalty of perjury, that the claims raised are new and have never been considered by the court before. Frazier contends that, by virtue of the district court's determination that it lacked jurisdiction over her action, it was without power to declare her motion for summary judgment moot or to impose any restraint on her ability to file future actions. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part and vacate in part.

We review de novo the district court's dismissal of an action for lack of jurisdiction. See Dweck v. Japan CBM Corp., 877 F.2d 790, 792 (9th Cir. 1989). The district court's imposition of a restraint on filings is reviewed for abuse of discretion. See Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984).

The courts of appeals have exclusive jurisdiction to review the decisions of the RRB. See 45 U.S.C. §§ 231(g) & 355(f); Public Util. Comm'r v. Bonneville Power Admin., 767 F.2d 622, 627 (9th Cir. 1985) ("jurisdiction over a specific class of claims which Congress has committed to the court of appeals generally is exclusive, even in the absence of an express statutory command of exclusiveness"); Denberg v. United States R.R. Retirement Bd., 696 F.2d 1193, 1196 (7th Cir. 1983) (jurisdiction to review RRB's decisions exclusively vested with courts of appeal), cert. denied, 466 U.S. 926 (1984).

Dismissal for lack of subject-matter jurisdiction is not a judgment on the merits of the substantive claim. See Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985) ("dismissal for lack of subject-matter jurisdiction ... is not a judgment on the merits"), cert. denied, 476 U.S. 1183 (1986). Moreover, we permit the district "court to enjoin repetitive and vexatious litigation only after it has reached a judgment on the merits." Id.

In her complaint, Frazier alleges that the RRB violated her right to due process guaranteed by the fifth amendment and deprived her of retirement benefits in violation of the Railroad Retirement Act of 1974, 45 U.S.C. §§ 231-231v. The district court, however, determined that it lacked jurisdiction to hear this claim. We agree. See 45 U.S.C. §§ 231(g) & 355(f); Public Util. Comm'r, 767 F.2d at 627; see, e.g., Steiger v. United States R.R. Retirement Bd., 761 F.2d 1428, 1429 (9th Cir. 1985) (court of appeals had jurisdiction to review RRB's decision and to determine whether RRB's actions violated the fifth amendment). Thus, the district court properly dismissed the action for lack of jurisdiction.¹ 

Frazier also contends that the district was without power to declare her motion for summary judgment moot or to impose restraints on her ability to file future actions because it lacked subject-matter jurisdiction. We find that the district court's determination that Fraizer's motion for summary judgment was moot was correct given that the district court had held that it was without jurisdiction. The district court's determination that it lacked jurisdiction over her claim, however, is not a judgment on the merits of her substantive claim, and the district court "retained no power to make judgments relating to the merits of the case" or to issue an order limiting Frazier from bringing repetitive litigation. See Cook, 775 F.2d at 1035-36. Thus, the district court erred in imposing restraints on Frazier's ability to file future actions and its order is vacated.² 

AFFIRMED in part, VACATED in part.