NOTE: This disposition is nonprecedential.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, Washing-
ton, DC, for defendant-appellee. Also represented by
JEFFREY H. WOOD.
MARCUS UPSHAW, Cape Neddick, ME, pro se, as ami-
cus curiae.
______________________
2 UPSHAW v. UNITED STATES
Before LOURIE, BRYSON, and WALLACH, Circuit Judges.
PER CURIAM.
Solomon Upshaw (“Upshaw”) appeals from the deci-
sion 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 sub-
ject 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 ap-
pellate jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
Whether the Claims Court properly dismissed a com-
plaint 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 dismis-
sal 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); Cam-
bridge 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 dis-
miss, the court must accept as true the complaint’s undis-
puted 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 subject-
matter jurisdiction exists, even in the absence of a chal-
lenge 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 com-
pensation. 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 ex-
press 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 constitu-
tional 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 re-
inforce our conclusion that his case should be dismissed
for lack of subject matter jurisdiction. Upshaw inexplica-
bly 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
