In addition, the Federal Circuit has held that a statute is money mandating when the government has an absolute duty to make payments to any person who meets the specific requirements set forth in the statute. See Grav v. United States, 886 F.2d 1305, 1307 (Fed. Cir. 1989) ( Grav II) (holding that a statute was money mandating because it required the government to enter into a contract to pay money to any recipient who met the express requirements of the statute). Plaintiffs assert that section 1603 is money mandating because Treasury does not possess any discretion in determining whether to award a grant under that section.

Plaintiffs assert that defendant could have responded to the spending limitations imposed upon the CSP without undermining the objectives of the program. With respect to the court's third question, plaintiffs concede that — assuming defendant does in fact possess discretion under the statute to determine eligibility for the program — the CSP statute would not be a money-mandating source of law under the test set forth in Grav v. United States, 886 F.2d 1305, 1307 (Fed. Cir. 1989). Nonetheless, plaintiffs argue that the CSP statute would still be money mandating under the alternative standard articulated in Samish Indian Nation v. United States, 419 F.3d 1355, 1364-65 (Fed. Cir. 2005) ( Samish II). Finally, with respect to the court's fourth question, plaintiffs contend that there would be no need to invalidate the CSP regulations if the court determines that the CSP statute created an entitlement program obligating the government to make payments to any producer who meets the express statutory requirements of the program.

Id. at 405. Similarly, the statutory provision in Grav v. United States , 14 Cl. Ct. 390 (1988), aff’d , 886 F.2d 1305 (Fed. Cir. 1989), provided that "[t]he Secretary shall offer to enter into a contract" with milk producers. Id. at 392.

The mere failure of a respondent to furnish requested information — for any reason — requires Commerce to resort to other sources of information to complete the factual record on which it makes its determination." (second alteration in original)); Merck Co. v. Hi-Tech Pharmacal Co., 482 F.3d 1317, 1322 (Fed. Cir. 2007) ("Use of the word `shall' in a statute generally denotes the imperative."); Grav v. United States, 886 F.2d 1305, 1307 (Fed. Cir. 1989) (noting that use of the word "shall" indicates the action is mandatory). Nor does the plain language of § 1677b(c)(2) preclude application of § 1677e(a)'s "facts otherwise available" to valuations of NME merchandise.

Use of the word "shall" in a statute generally denotes the imperative. See BlackLight Power, Inc. v. Rogan, 295 F.3d 1269, 1273 (Fed. Cir.2002) (stating that the word "shall" imposes a duty); Grav v. United States, 886 F.2d 1305, 1307-08 (Fed. Cir.1989) (stating that the use of the word "shall" indicates the action is mandatory); Acuna v. United States, 202 Ct.Cl. 206, 479 F.2d 1356, 1360 (1973) (same). Nothing in the language of the statute states or suggests that the word "shall" does not mean exactly what it says.

We have repeatedly recognized that the use of the word "shall" generally makes a statute money-mandating. See, e.g., McBryde v. United States, 299 F.3d 1357, 1361 (Fed. Cir. 2002); Huston v. United States, 956 F.2d 259, 261-62 (Fed. Cir. 1992); Grav v. United States, 886 F.2d 1305, 1307 (Fed. Cir. 1989). Indeed, we have held that 37 U.S.C. § 204 is money-mandating, and it contains substantively identical language to the statute at issue here: "The following persons are entitled to the basic pay of the pay grade to which assigned or distributed," 37 U.S.C. § 204(a) (2000) (emphasis added).

When, within the same statute, Congress uses both "shall" and "may," it is differentiating between mandatory and discretionary tasks. Grav v. United States, 886 F.2d 1305, 1307 (Fed. Cir. 1989). The one we are considering is discretionary and that defeats the claimed jurisdiction.

"In general, a statute will be deemed to be a money-mandating source of law if it compels the government to make a payment to an identified party or group." ARRA Energy Co. I v. United States, 97 Fed. Cl. 12, 19 (2011) (citing Eastport, 372 F.2d at 1009 ("Under Section 1491 what one must always ask is whether the constitutional clause or the legislation which the claimant cites can be fairly interpreted as mandating compensation by the Federal Government for the damage sustained.")); see also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005) (observing that "where the statutory text leaves the government no discretion over payment of claimed funds[,]" Congress has provided a money-mandating source for jurisdiction in this court); Grav v. United States, 886 F.2d 1305, 1307 (Fed. Cir. 1989) (characterizing a statute as money mandating for the purposes of Tucker Act jurisdiction where the Secretary had no discretion to prevent a qualified applicant from participating in the statutory program). As indicated above, NAHASDA provides that the Secretary "shall . . . make grants" and "shall allocate any amounts" among Indian tribes that comply with certain requirements, 25 U.S.C. §§ 4111, 4151 (emphasis added), and directs that the funding allocation be made pursuant to a particular formula, 25 U.S.C. § 4152.

"In general, a statute will be deemed to be a money-mandating source of law if it compels the government to make a payment to an identified party or group." ARRA Energy Co. I v. United States, 97 Fed. Cl. 12, 19 (2011) (citing Eastport, 372 F.2d at 1009 ("Under Section 1491 what one must always ask is whether the constitutional clause or the legislation which the claimant cites can be fairly interpreted as mandating compensation by the Federal Government for the damage sustained.")); see also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005) (observing that "where the statutory text leaves the government no discretion over payment of claimed funds[,]" Congress has provided a money-mandating source for jurisdiction in this court); Grav v. United States, 886 F.2d 1305, 1307 (Fed. Cir. 1989) (characterizing a statute as money mandating for the purposes of Tucker Act jurisdiction where the Secretary had no discretion to prevent a qualified applicant from participating in the statutory program). As indicated above, NAHASDA provides that the Secretary "shall . . . make grants" and "shall allocate any amounts" among Indian tribes that comply with certain requirements, 25 U.S.C. §§ 4111, 4151 (emphasis added), and directs that the funding allocation be made pursuant to a particular formula, 25 U.S.C. § 4152.

When a statute states that the United States "shall pay" compensation for a rendered service, such a statute is generally found to be money-mandating. Agwiak v. United States, 347 F.3d 1375, 1380 (Fed. Cir. 2003) ("We have repeatedly recognized that the use of the word `shall' generally makes a statute money-mandating.") (citing McBryde v. United States, 299 F.3d 1357, 1361 (Fed. Cir. 2002); Huston v. United States, 956 F.2d 259, 261-62 (Fed. Cir. 1992); Grav v. United States, 886 F.2d 1305, 1307 (Fed. Cir. 1989)). Even statutory language such as "may award and pay" has been found to be money-mandating, when the legislative intent and context of the statute indicate that the applicant is entitled to payment from the United States if certain conditions have been met.