dissenting.
The Supreme Court has repeatedly told us that “for claims against the United States ‘founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department,’ 28 U.S.C. § 1491, a court must inquire whether the source of substantive law can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” United States v. Mitchell, 463 U.S. 206, 218, 103 S.Ct. 2961, 2968, 77 L.Ed.2d 580 (1983); United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976). If the payment of money is permissive, admitting of discretion in the government to pay or not, the legal source of the authority to pay is not “money mandating,” it is “money permitting.” There is no jurisdiction in the United States Claims Court to entertain a suit on that basis. Adair v. United States, 648 F.2d 1318, 1322, 227 Ct.Cl. 345 (1981).
What we have here is enabling legislation directing the Secretary of Agriculture to set up a program by which applicants to the program may receive payments if they meet eligibility requirements, and programmatic standards which the statute entrusts the Secretary to set in the prudent exercise of his discretion. According to Grav, 7 U.S.C. § 1446(d)(3) mandates the payment of money to, and creates an implied-in-fact contract with, all comers to the milk diversion program. This strains logic and does not comport with the plain language of the statute.
In directing the Secretary to establish the MDP, Congress’ purpose was to stabilize the market price of milk. But it was also concerned that the increased slaughter of dairy cows could induce instability in related agricultural industries. Congress therefore instructed the Secretary to “take into account any adverse impact of the reductions in milk production on beef, pork, and poultry producers in the United States,” and vested in him the authority to “take all feasible steps to minimize such impact.” Id. § 1446(d)(3)(A).
By Grav’s reckoning, “all feasible steps” excludes the ability to reject an application. The court agrees, saying “the import of this language is only to allow the Secretary to alter the quantities in a contract, but not to permit him to refuse to enter into a contract altogether with a qualified applicant.” At 1308. But Congress expressly provided the opposite.
Singularly excluded from the measures available to the Secretary is the authority to determine the percent reduction in milk marketing to be undertaken by a producer. As provided in subsection (d)(3)(B)(i), “the producer shall reduce the quantity of milk marketed for commercial use in an amount equal to a percentage specified by the producer. ...” And, while subsection (d)(3)(E) authorizes the Secretary unilaterally to modify the percent reduction specified for a particular quarter of the contract period, “the aggregate reduction in milk marketed for commercial use for the entire diversion period must continue to be at least equal to the total reduction required by the con*1310tract.” Moreover, the statute is explicit that the Secretary is not merely to assess the amount of payments to be received by a producer on the basis of the information supplied in an application, but is to determine the producer’s “[eligibility for diversion payments_” Id. § 1446(d)(3)(I).
It is plain, therefore, that the statute does not vest in milk producers a substantive right to receive money from the government. The statute directs the Secretary to solicit the interest of producers in the milk program and contractually to secure their participation, but it commends to his sound discretion the means by which to avert disruption in other sectors of the agricultural economy. Manifestly, those means include the rejection of an application the Secretary deems unduly prejudicial to the balance he is endeavoring to establish. Accordingly, the statute is not money mandating, and the Claims Court has no jurisdiction to hear the complaint of a disappointed applicant to the MDP.
For similar reasons, Grav’s implied-in-fact contract theory also fails. Charging the Secretary with the authority to determine an applicant’s eligibility for the program, and reserving to him the right to set the terms and conditions of contracts, id. § 1446(d)(3)(A), the statute is not an offer that the qualified milk producer can accept upon application. See Cutler-Hammer, Inc. v. United States, 441 F.2d 1179, 1182, 194 Ct.Cl. 788 (1971) (“So long as it is reasonably apparent that some further act of the offeror is necessary, the offeree has no power to create contractual relations by an act of his own, and there is as yet no operative offer”). There can be no contract implied-in-fact absent the same mutuality of intent required for an express contract. H.F. Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed.Cir.1984). Because the Secretary has the discretionary right to decide the terms upon which to accept an application, indeed, to decide whether to accept it at all, the mere submission of an application creates no contract, and the applicant has no basis for invoking the jurisdiction of the Claims Court.