NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

SOLOMON UPSHAW,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2018-2005

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:17-cv-01782-PEC, Judge Patricia E. 

Campbell-Smith. 

______________________ 

Decided: November 9, 2018

______________________ 

 SOLOMON UPSHAW, Cape Neddick, ME, pro se.

 ERIKA B. KRANZ, Environment & Natural Resources 

Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by 

JEFFREY H. WOOD. 

MARCUS UPSHAW, Cape Neddick, ME, pro se, as amicus curiae. 

______________________ 
2 UPSHAW v. UNITED STATES

Before LOURIE, BRYSON, and WALLACH, Circuit Judges.

PER CURIAM.

Solomon Upshaw (“Upshaw”) appeals from the decision of the United States Court of Federal Claims (“the 

Claims Court”) dismissing his complaint under Rule 

12(b)(6) of the Rules of the United States Court of Federal 

Claims (“Rule 12(b)(6)”) for failure to state a claim upon 

which relief could be granted. Upshaw v. United States, 

No. 17-1782L, 2018 WL 2077905 (Fed. Cl. May 4, 2018). 

Although the Claims Court erred by dismissing under 

Rule 12(b)(6) and should have dismissed for lack of subject matter jurisdiction, we affirm its judgment. 

BACKGROUND

Upshaw asserts that he is the owner of a parcel of real 

property located in Ocean County, New Jersey. Upshaw 

alleges that a public right of way has been imposed across 

his property for Wright-Debow Road and Dirt Drive. He 

offers little explanation of how this right of way was 

imposed, or which governmental entity imposed it, but he 

appears to argue that the Township of Jackson, New 

Jersey, is responsible. Appellee’s App. 006. The Claims 

Court concluded that Upshaw had failed to allege any 

relevant action taken by the United States and granted 

the United States’ motion to dismiss his claim under Rule 

12(b)(6). 

Upshaw timely appealed to this court. We have appellate jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

Whether the Claims Court properly dismissed a complaint under Rule 12(b)(6) is a question of law, which we 

review de novo. Bank of Guam v. United States, 578 F.3d 

1318, 1325–26 (Fed. Cir. 2009). In order to avoid dismissal for failure to state a claim, the complaint must allege 
UPSHAW v. UNITED STATES 3

facts plausibly suggesting entitlement to relief. See Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007); Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir.

2009). The factual allegations must be sufficient to raise 

a right to relief above the speculative level. See Twombly, 

550 U.S. at 555. “In ruling on a 12(b)(6) motion to dismiss, the court must accept as true the complaint’s undisputed factual allegations and should construe them in a 

light most favorable to the plaintiff.” Cambridge, 558

F.3d at 1335. 

Establishing subject matter jurisdiction is a threshold 

issue, Dow Jones & Co., Inc. v. Ablaise Ltd., 606 F.3d 

1338, 1348 (Fed. Cir. 2010), and every federal court has 

an “independent obligation to determine whether subjectmatter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 

500, 514 (2006). “Without jurisdiction the court cannot 

proceed at all in any cause. Jurisdiction is power to 

declare the law, and when it ceases to exist, the only 

function remaining to the court is that of announcing the 

fact and dismissing the cause.” Ex parte McCardle, 74 

U.S. 506, 514 (1868).

Upshaw’s complaint, liberally construed, only alleges 

that the Township of Jackson, New Jersey, not the United 

States, has effected a taking of his property by subjecting 

it to a public right of way without paying him just compensation. Appellee’s App. 006. His claim does not fall 

within the jurisdiction of the Claims Court. The Tucker 

Act confers jurisdiction upon the Court of Federal Claims 

for “any claim against the United States founded either 

upon the Constitution, or any Act of Congress or any 

regulation of an executive department, or upon any express or implied contract with the United States, or for 

liquidated or unliquidated damages in cases not sounding 

in tort” and waives the government’s sovereign immunity 

for these claims. 28 U.S.C. § 1491(a)(1) (emphasis added); 

United States v. Sherwood, 312 U.S. 584, 588 (1941) 
4 UPSHAW v. UNITED STATES

(“[The Claims Court’s] jurisdiction is confined to the 

rendition of money judgments in suits brought for that 

relief against the United States, and if the relief sought is 

against others than the United States[,] the suit as to 

them must be ignored as beyond the jurisdiction of the 

court.”) (citations omitted).

Upshaw has identified no federal statute or constitutional provision that is a money-mandating source of law 

for claims against the United States as a result of actions 

taken by state or local officials of the state of New Jersey. 

Therefore, the Claims Court did not have jurisdiction 

under 28 U.S.C. § 1491. See also LeBlanc v. United 

States, 50 F.3d 1025, 1028 (Fed. Cir. 1995); Sneed v. 

United States, 602 F. App’x 527 (Fed. Cir. 2015); Winston 

v. United States, 465 F. App’x 960 (Fed. Cir. 2012).

On appeal, Upshaw raises several arguments that reinforce our conclusion that his case should be dismissed 

for lack of subject matter jurisdiction. Upshaw inexplicably argues to us that the Claims Court did not have

subject matter jurisdiction over causes of action arising 

under 18 U.S.C. § 983, a provision in the section of the 

United States Code pertaining to civil asset forfeiture in 

criminal cases. See 18 U.S.C. § 983(f)(3)(A) (requiring an 

action to recover seized assets be filed in district court). 

This argument was not made to the Claims Court and is 

waived. See Caterpillar Inc. v. Sturman Indus., Inc., 387 

F.3d 1358, 1368 (Fed. Cir. 2004). Upshaw never alleged, 

at any stage, that the relevant property was taken as part 

of a civil asset forfeiture in a criminal case. In any case, 

Upshaw’s argument also leads to the conclusion that the 

Claims Court did not have jurisdiction to hear the case

under 28 U.S.C. § 1491. See, e.g., Joshua v. United States, 

17 F.3d 378, 379 (Fed. Cir. 1994) (affirming that the 

Claims Court “has no jurisdiction to adjudicate any claims 

whatsoever under the federal criminal code”). 
UPSHAW v. UNITED STATES 5

Upshaw similarly argues that the Claims Court did 

not have subject matter jurisdiction to hear his claim 

because it “sounded in tort,” which lies outside the Claims 

Court’s statutory jurisdiction. 28 U.S.C. § 1491. Upshaw 

has not, at any stage, alleged that the United States 

committed a tort against him, and even if that argument 

were credited, it would still lead to the conclusion that the 

Claims Court did not have subject matter jurisdiction in 

this matter. 

Upshaw’s complaint should have been dismissed for 

lack of subject matter jurisdiction. Nevertheless, where a 

court improperly dismissed a case pursuant to either Rule 

12(b)(1) or Rule 12(b)(6) and should have dismissed under 

the other defense, affirmance of that court’s dismissal 

may be warranted when “nothing in the analysis of the 

court[] below turned on the mistake.” Morrison v. Nat’l 

Austl. Bank Ltd., 561 U.S. 247, 254 (2010) (declining to 

remand where “a remand would only require a new Rule 

12(b)(6) label for the same Rule 12(b)(1) conclusion”). See 

also Sioux Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d 

1041, 1062 n.7 (Fed. Cir. 2012). We conclude that this 

case presents a similar situation. Upshaw’s complaint 

can only plausibly be read to assert a taking by an entity 

other than the United States. This claim neither falls 

within the jurisdiction of the Claims Court nor states a 

claim upon which relief can be granted, and thus it was 

properly dismissed. 

CONCLUSION

For the foregoing reasons, we affirm the judgment of 

the Claims Court.

AFFIRMED