dissenting.
I regret that I cannot join the majority opinion on the issue of jurisdiction. In my view, the test that it applies, drawn from our earlier decision in Gollehon Farming *1388v. United States, 207. F.3d 1373, 1379 (Fed.Cir.2000), is directly contrary to the teachings of the Supreme Court’s recent decision in United States v. White Mountain Apache Tribe, 537 U.S. 465, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003), which makes clear that the correct test is whether the statute can “fairly be interpreted” as money-mandating, ie., whether it is “reasonably amenable” to such a construction, id. at 472-73, 123 S.Ct. 1126 (quoting United States v. Mitchell, 463 U.S. 206, 217-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (‘Mitchell II”)).
I
At some points in its opinion, the majority appears to state the correct test for determining whether a statute'is money-mandating. See, e.g., ante at 1376-77. Ultimately, however, I understand the majority opinion to hold that, under our decision in Gollehon, the Court of Federal Claims has jurisdiction here because the plaintiff has made “a non-frivolous allegation that the statute or regulation in question meets the test for money-mandatingness,” ie., that the “statute is reasonably amenable, with fair inferences drawn, to a reading that it mandates money damages.” Ante at 1377-78 (emphasis added). In Gollehon, we held that the “lack of [a] money-mandating statute is not [a] jurisdictional issue.” 207 F.3d at 1379 (citing Palmer v. United States, 168 F.3d 1310, 1312-14 (Fed.Cir.1999)). Rather, we stated: “The failure to identify a ‘money mandating’ provision results in such claims being dismissed for failure to state a claim upon which relief can be granted.” Id. Gollehon held that all that is required to vest the court with jurisdiction is “a nonfrivolous claim for relief,” including a non-frivolous allegation that the statute can fairly be interpreted as money-mandating. Id. That holding is simply not correct.
Even at the time it was decided, Golle-hon appeared to be inconsistent with the Supreme Court’s decision in Mitchell II. The Tucker Act itself confers jurisdiction only when the action is “founded” on an Act of Congress or other money-mandating source. 28 U.S.C. § 1491(a)(1) (2000). Mitchell II stated: “The claim must be one for money damages against the United States, and the claimant must demonstrate that the source of substantive law he relies upon can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” 463 U.S. at 216-17, 103 S.Ct. 2961 (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)) (internal quotation marks, citation, and footnote omitted): In Mitchell II, the Court clearly applied the fair interpretation test to determine that jurisdiction existed:
We ... conclude that the statutes and regulations at issue here can fairly be interpreted as mandating compensation by the Federal Government for violations of its fiduciary responsibilities in the management of Indian property. The Court of Claims [now the Court of Federal Claims] therefore has jurisdiction over respondents’ claims for alleged breaches of trusts.
Id. at 228, 103 S.Ct. 2961 (footnote omitted). There was no suggestion in Mitchell II that a mere non-frivolous allegation that the statute was fairly interpreted as money-mandating would be sufficient. In any event, the Supreme Court’s recent decision in White Mountain makes plain that something more than a non-frivolous allegation is required for jurisdiction.
In White Mountain, the Court “granted certiorari to decide whether the [relevant statute] gives rise to jurisdiction over suits for money damages against the United States,” 537 U.S. at 471, 123 S.Ct. 1126, and it held that the Court of Federal Claims had jurisdiction because the statute “permits a fair inference that the Govern*1389ment is subject to duties as a trustee and liable in damages for breach,” id. at 474, 123 S.Ct. 1126. The Court restated the jurisdictional test so that the “fair interpretation” test is satisfied if the statute is “reasonably amenable” to a money-mandating construction. See id. at 472-73, 123 S.Ct. 1126. The Court concluded: “It is enough ... that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be ‘lightly inferred,’ a fair inference will do.” Id. at 473, 123 S.Ct. 1126 (quoting Mitchell II, 463 U.S. at 218, 103 S.Ct. 2961) (citations omitted). The dissent thought that test too lax:
As the Court has repeatedly held, the test to determine if Congress has conferred a substantive right enforceable against the Government in a suit for money damages is whether an Act “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” Instead of faithfully applying this test, however, the Court engages in a new inquiry, asking whether common-law trust principles permit a “fair inference” that money damages are available, that finds no support in existing law.
Id. at 481-82, 103 S.Ct. 2961 (Thomas, J., dissenting) (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948) (citation omitted). Now, the majority here has gone one step further, holding that all that is required under Gollehon is that the complaint make a non-frivolous allegation that the statute is reasonably amenable to a money-mandating construction. Ante at 1376-77. The majority has diluted the test so that it is not merely lax; it is virtually non-existent. All that is required is a non-frivolous allegation of reasonable amenability.
The majority dismisses this concern by stating that it “confuses process with substance.” Ante at 1377. I am unable to respond because I simply cannot understand what the majority is saying. The issue is the test for jurisdiction, and in my view the majority has clearly gotten it wrong.
II
The majority reserves a second question that I also think is plainly answered by White Mountain, namely whether the money-mandating test is the same at the jurisdictional and merits stages of the case. At both stages, the test is whether the statute can “fairly be interpreted” as money-mandating, or, under White Mountain, whether it is “reasonably amenable” to a money-mandating construction.1 See, e.g., White Mountain, 537 U.S. at 473, 123 S.Ct. 1126; Mitchell II, 463 U.S. at 218, 103 S.Ct. 2961; Testan, 424 U.S. at 400, 96 S.Ct. 948. The White Mountain majority made no distinction between the jurisdictional and merits stages. Indeed, the Court affirmed the specific holding of this court that the statute was money-mandating both for jurisdiction and on the merits, White Mountain Apache Tribe v. United States, 249 F.3d 1364, 1383 (Fed.Cir.2001) (“In sum, we hold that the Tribe’s claim gives rise to a cognizable claim for money damages. Accordingly, we hold that the Court of Federal Claims has jurisdiction to entertain it.” (emphases added)). White Mountain, 537 U.S. at 479, 123 S.Ct. 1126. The Court stated that, although the Tucker Act itself does not “create! ] a substantive right enforceable against the Government by a claim for money damages,” id. *1390at 472, 123 S.Ct. 1126, “a statute creates a right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it ‘can fairly be interpreted .as mandating compensation by the Federal Government for the damage sustained,’ ” id. (quoting Mitchell II, 463 U.S. at 217, 103 S.Ct. 2961) (emphasis added).
The dissent in White Mountain also did not distinguish between the jurisdictional and merits stages for purposes of whether the statute was money-mandating. Rather, it expressly would have applied the same test at both stages:
The majority’s conclusion that the Court of Federal Claims has jwisdiction over this matter finds support in neither the text of the [Act of Mar. 18, 1960], see Pub.L. 86-392, 74 Stat. 8, nor our case law. As the Court has repeatedly held, the test to determine if Congress has conferred a substantive right enforceable against the Government in a suit for money damages is whether an Act “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.”
Id. at 481-82, 123 S.Ct. 1126 (Thomas, J., dissenting) (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948) (first two emphases added). The dissent further noted: “The Court today fashions a new test to determine whether Congress has conferred a substantive tight enforceable against the United States in a suit for money damages.” Id. at 487, 123 S.Ct. 1126 (emphasis added). Thus, neither the majority nor the dissent in White Mountain distinguished between the jurisdictional and merits stages.
Just as White Mountain and Mitchell II applied the fair interpretation test at the jurisdictional stage, United States v. Navajo Nation, 537 U.S. 488, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003), applied the fair interpretation test at both the jurisdictional and the merits stages. See id. at 506, 123 S.Ct. 1079 (setting forth the fair interpretation test as the standard that must be met “[t]o state a claim cognizable under the Indian Tucker Act” (emphasis added)).
Nor does our most recent en banc decision in this area (decided shortly after White Mountain) in any way suggest different tests for the jurisdictional stage and the merits stage on the money-mandating question. See Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003) (en banc). So too, Judge Plager’s dissent assumed that the test for substantive money-mandatingness is the fair interpretation test. Determining that the pertinent statutes and regulations were money-mandating, Judge Plager stated that they “clearly meet[] the test set out by the Supreme Court: the asserted entitlement to money damages depends upon whether any federal statute [or regulation] can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” Id. at 1324 (Plager, J., dissenting) (quoting Testan, 424 U.S. at 400, 96 S.Ct. 948) (internal quotation marks omitted) (first alteration added). I would decide the reserved issue by applying the same test for money-mandating at both the jurisdictional and merits stages.
I express no view here as to whether the statute is reasonably amenable to the required money-mandating construction under the correct test.
Accordingly, I respectfully dissent.
. There are, of course, other legal and factual issues concerning the plaintiff’s right to recover that are not part of the money-mandating issue. As to those aspects of the claim, the tests are different at the jurisdictional stage (a non-frivolous allegation) and at the merits stage.