[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 4, 2002
No. 01-16226 THOMAS K. KAHN
___________________________ CLERK
D.C. Docket No. 99-01315 CV-JAL
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
a federally-recognized Indian tribe,
Plaintiff-Appellant,
versus
SOUTHERN EVERGLADES RESTORATION ALLIANCE,
LEWIS HORNUNG, in his official capacity
as executive director of the Southern
Everglades Restoration Alliance,
UNITED STATES OF AMERICA,
U. S. DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
EVERGLADES NATIONAL PARK,
RICHARD G. RING, in his official capacity
as Superintendent of Everglades National Park,
UNITED STATES FISH & WILDLIFE SERVICE,
STEVEN FORSYTHE, in his official capacity
as State Supervisor of Department of the
Interior Fish and Wildlife Service,
THE UNITED STATES ARMY CORPS OF ENGINEERS,
JAMES G. MAY, Colonel, in his official
capacity as District Engineer for the
U.S. Army Corps of Engineers,
Defendants-Appellees.
____________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(September 4, 2002)
Before CARNES and HILL, Circuit Judges, and DUPLANTIER*, District Judge.
CARNES, Circuit Judge:
The Miccosukee Tribe is a federally recognized Indian Tribe whose
members reside and work within the Florida Everglades. The Southern
Everglades Restoration Alliance (“SERA”) is a group organized and funded at
least in part by certain federal agencies to assist themselves and other agencies in
developing strategies for implementing restoration projects in the Everglades. The
Tribe believes that the advice SERA has provided to federal agencies has caused
continuing damage to tribal lands in the Everglades. As a result, the Tribe brought
a lawsuit under the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2 §§ 1
et. seq., seeking a declaratory judgment that SERA was an advisory committee
within the meaning and coverage of the Act, that it was therefore subject to the
requirements of the Act, and that SERA and its member agencies had failed to
comply with those requirements, resulting in SERA’s actions being void. SERA
*
Honorable Adrian G. Duplantier, U.S. District Judge for the Eastern District
of Louisiana, sitting by designation.
2
is now defunct, but the Tribe also sought an injunction against the use of any of its
advice and recommendations – what the Tribe calls SERA’s “work product” – by
any of the agencies named as defendants. The named defendants, in addition to
SERA itself and its former executive director, Lewis Hornung, included a number
of federal agencies and officials who allegedly had participated in SERA or had
relied on advice given by SERA in implementing restoration projects in the
Everglades.1
The district court, after finding that the Tribe had standing to bring the
lawsuit, determined that although SERA did fall within the plain meaning of the
statutory term “advisory committee,” it was not within the intended scope of
FACA. That determination led to the district court’s conclusion that the Tribe had
failed to state a claim upon which relief could be granted. We disagree with the
district court’s decision and reverse the judgment of dismissal as to virtually all of
the defendants, affirming it only as to SERA itself and Hornung.
I. BACKGROUND
1
The federal agencies named as defendants are the United States
Department of the Interior; the Everglades National Park; Richard Ring, in his
official capacity as Superintendent of Everglades National Park; the United States
Fish and Wildlife Service; Steven Forsythe, in his official capacity as State
Supervisor of Department of the Interior Fish and Wildlife Service; the United
States Army Corps of Engineers; and Colonel James G. May, Colonel, in his
official capacity as District Engineer for the Corps of Engineers.
3
SERA ceased to exist sometime in 1999, but according to the complaint, in
the 1990s SERA had been organized and funded by federal agencies to assist its
members, both federal and state agencies,2 in developing strategies for
implementing restoration projects in the Florida Everglades. The SERA members
collaborated to provide advice and recommendations for use in implementing
various federal policies and programs dealing with the Everglades, including, for
example, the Modified Water Deliveries Project, which was designed to restore
more natural hydropatterns in water conservation areas of the Everglades.
SERA failed to comply with some of the requirements of FACA, which
governs the procedures certain committees established by the Executive branch
must follow. For example, FACA requires notice of meetings of the committees
or agencies it covers to be published in the Federal Register, see 5 U.S.C. App. 2 §
10(a)(2), and none of SERA’s meetings were.
The defendants filed a motion to dismiss the complaint for failure to
2
It is unclear from the complaint whether any private parties or agencies
were members of SERA. The federal agencies participating in SERA included the
Corps of Engineers, the Fish and Wildlife Service, and the National Park Service,
while the state agencies included the South Florida Water Management District
and the Florida Department of Environmental Protection. It appears from the
complaint that these agencies were directly responsible for implementing
programs dealing with restoration of the Everglades.
4
state a claim, or in the alternative, for summary judgment, contending, among other
things, that the Tribe lacked standing to bring the lawsuit; that SERA was not
governed by FACA because it did not meet that Act’s definition of “advisory
committee” and did not fall within the Act’s purposes; and that even if SERA
would otherwise have been within the scope of FACA, it was taken out by virtue of
the Unfunded Mandates Reform Act, 2 U.S.C. §§ 1501 et. seq. After staying
discovery, the district court granted the motion to dismiss the complaint,
concluding that SERA was not a committee governed by FACA because, although
it did meet the “plain language” of FACA’s statutory requirements as set forth in
the definition of “advisory committee,” it did not fall within the spirit of the statute
as revealed by its legislative history. The Tribe appealed.
II. DISCUSSION
A. STANDING
A threshold issue in this case is whether the Tribe has standing to seek the
relief it is seeking under FACA. The district court believed that the Tribe had
alleged a sufficiently concrete and redressable injury to establish standing.
Reviewing the issue de novo, Florida Ass’n of Med. Equip. Dealers v. Apfel, 194
F.3d 1227, 1229 (11th Cir. 1999), we agree.
5
In order to establish standing, a plaintiff must allege (and eventually prove):
(1) an injury in fact, which means harm to the plaintiff that is concrete and actual
or imminent; (2) causation; and (3) redressability, which means a likelihood that
the requested relief will redress the injury. Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 103, 118 S.Ct. 1003, 1016-17 (1998). The required
showing, of course, depends to some extent on the stage of the litigation at which
the standing issue is being decided, Lujan v. Defenders of Wildlife, 504 U.S. 555,
561, 112 S.Ct. 2130, 2136 (1992), and here we are at the pleading stage. “At the
pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we presume that general
allegations embrace those specific facts that are necessary to support the claim.”
Id. at 561, 112 S.Ct. at 2137 (internal quotations omitted).
The complaint alleges that SERA’s involvement in developing a plan for
Everglades restoration, which included recommending an alternative plan to the
Modified Water Deliveries Project (a water management plan authorized by
Congress to protect tribal lands), had delayed the implementation of that
congressional plan for restoration of the Everglades and had thereby damaged
tribal lands. The complaint also alleges that continued reliance on SERA’s advice
will result in decisions further delaying the implementation of the congressional
6
project, which will in turn continue to damage the land that the Tribe relies on for
its subsistence. See id.
The defendants contend that the Tribe has failed to show it has standing
because: (1) the alleged injury is too general; (2) the Tribe has not adequately
alleged the failure of SERA to follow the FACA procedures caused the damage to
tribal lands which the Tribe asserts as its injury; and (3) a use injunction would not
redress the claimed injury, because the complaint does not allege how SERA’s
advice might be relied on in the future to cause harm, especially since SERA no
longer exists. According to the defendants, in order to establish standing, the
Tribe was required to plead specific facts describing the advice SERA had given
that delayed implementation of the congressional plan, how that advice had
influenced the final policy decision of the federal agency or agencies, and how the
final decision had resulted in damage to tribal lands and would continue to damage
them in the future.
If this case was at the summary judgment stage, and discovery had been
conducted instead of stayed, we might agree with the defendants’ arguments. See
Lujan, 504 U.S. at 560, 112 S.Ct. at 2137 (“In response to a summary judgment
motion... the plaintiff can no longer rest on ... ‘mere allegations,’ [acceptable at the
pleading stage] but must ‘set forth’ by affidavit or other evidence ‘specific
7
facts’....”). But that is not where this case is. It is only at the motion to dismiss
stage, and at this stage the Tribe is only required to generally allege a redressable
injury caused by the actions of SERA about which it complains. See Lujan, 504
U.S. at 561, 112 S.Ct. at 2137. It has done that. Without discovery, the Tribe is
not expected to allege more particular information, such as the specific advice
SERA gave which resulted in delaying implementation of the congressional
project, especially since SERA allegedly did not make public its advice and
recommendations. See Complaint ¶ 52.
Taken as true for purposes of the motion to dismiss, the Tribe’s allegations
of a past and continuing injury to its tribal lands allegedly caused by federal
agencies’ actual and continuing reliance on SERA’s recommendations that were
arrived at in violation of FACA establishes injury in fact and causation for present
purposes. See Alabama-Tombigbee Rivers Coalition v. Dep’t of the Interior, 26
F.3d 1103, 1107 (11th Cir. 1994) (a court may properly enjoin the government’s
use of a product created by a committee that failed to comply with FACA
requirements). And the alleged injury could well be redressed by prohibiting the
use of SERA’s recommendations by the defendant federal agencies. See generally
Byrd v. EPA, 174 F.3d 239, 244 (D.C. Cir. 1999) (rejecting argument that
plaintiff’s injury was not redressable because the panel that had allegedly operated
8
in violation of FACA had disbanded). In short, the Tribe in its complaint met the
standard for establishing standing at the pleading stage.
B. MOOTNESS
We agree with SERA and Hornung, however, that the Tribe’s claim for
relief against them is moot. Hornung is no longer the executive director of SERA,
and SERA no longer exists. A declaratory judgment and use injunction against the
nonexistent SERA and against Hornung, who no longer holds the now non-existent
position of SERA’s executive director, would afford the Tribe no meaningful
relief. See Dow Jones & Co., Inc. v. Kaye, 256 F.3d 1251, 1254 (11th Cir. 2001).
So, we will affirm the district court’s judgment to the extent it dismisses the
complaint insofar as SERA itself and Hornung are concerned. We turn now to the
issues that are not moot, those that have to do with what is to happen to the lawsuit
insofar as it concerns the other defendants, those federal agencies that continue to
exist and officials in positions at those agencies that continue to exist.
C. THE MERITS
9
Congress enacted FACA in 1972 to reform the use of advisory committees
by the Executive Branch. Specifically, the Act aims to reduce the number of
unnecessary committees and to increase the uniformity of procedures for the
committees that are necessary. 5 U.S.C. App. 2 § 2(b). To achieve its goal,
FACA places a number of requirements on advisory committees. An “advisory
committee” is defined in the Act as “any committee, board, commission, council,
conference, panel, task force, or other similar group” that is “established or
utilized” by the President or an agency “in the interest of obtaining advice or
recommendations” for one or more federal agencies or officers. 5 U.S.C. App. 2 §
3(2).3 The requirements advisory committees have to meet include filing a
detailed charter, giving advance notice in the Federal Register of any meetings,
generally holding open meetings, having an officer or employee of the federal
government preside over or attend every meeting, making records available to the
public, and if the committee is established by legislation or created by the
President or other federal official or agency, being “fairly balanced in terms of the
points of view represented and the functions to be performed” and not being
3
FACA does exempt from its definition of advisory committee “any
committee ...composed wholly of full-time officers or employees of the Federal
Government.” 5 U.S.C. App. 2 § 3(2). Both sides agree that SERA does not fit
within that exemption.
10
“inappropriately influenced by the appointing authority or by any special interest.”
5 U.S.C. App. 2 §§ 5, 9, 10.
It is undisputed that SERA failed to operate in compliance with the
requirements FACA imposed on advisory committees. The question is whether it
was an advisory committee for FACA purposes. To answer that question, we look
to the statute and the definition of “advisory committee” which Congress gave us
to express its intent about the scope of that Act.
In FACA itself Congress said that it meant for the term “advisory
committee” to include any (1) “ committee, board, commission, council,
conference, panel, task force, or other similar group,” (2) “established or
utilized” by the President or a federal agency4 (3) “in the interest of obtaining
advice or recommendations for the President or one or more agencies or officers of
the Federal Government.” 5 U.S.C. App. 2 §3(2). It is clear that, at least insofar as
the allegations of the complaint are concerned, SERA fit within the plain meaning
of the statutory definition of an advisory committee. In the words of the complaint,
SERA was an “entity with federal, state, and other member agencies that was
organized in the mid 1990's by the federal defendants in the interest of obtaining
4
FACA’s definition also covers otherwise qualifying entities that are
established by statute or reorganization plan, 5 U.S.C. App. 2 § 3(2)(A), but that
alternative is not involved in this case.
11
advice or recommendations and coordination regarding their respective activities,”
especially the implementation of four water projects relating to the Everglades, and
the federal defendants obtained such advice and recommendations from it.
Complaint ¶ ¶ 7, 9, 11, 13-16.
The D.C. Circuit has said that in order to be an advisory committee for
purposes of FACA’s definition, a “group” must have, “in large measure, an
organized structure, a fixed membership, and a specific purpose” and must render
advice or recommendations as a group, not as a collection of separate individuals.
Ass’n of Am. Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 913-14
(D.C. Cir. 1993). We need not decide whether we agree with that view, because
assuming those characteristics are essential, SERA is alleged to have had them.
The Supreme Court has said that to be a FACA advisory committee an
entity must have been established by statute, the President or a federal agency in
order to provide advice to the federal government. Public Citizen v. Dep’t of
Justice, 491 U.S. 440, 461, 109 S.Ct. 2558, 2570 (1989). The complaint alleges
that SERA was formed or organized by federal agencies in order to give them
advice and recommendations about the implementation of federal programs in the
Everglades. It was allegedly funded by federal agencies and did not select its own
agenda, but instead was organized to work on an agenda given to it involving
12
agency projects like the Modified Water Deliveries Project. That is enough to
establish that it was “established” to provide advice or recommendations to
government agencies.
The D.C. Circuit has taken the position that in order to qualify as a group
established to provide “advice or recommendations,” within the meaning of FACA,
the entity also must have been created to provide advice or recommendations with
regard to specific government policy and not merely to facilitate an exchange of
ideas and information or simply to be an “operational” committee. See Sofamor
Danek Group, Inc. v. Gaus, 61 F.3d 929, 934 & n.28 (D.C. Cir. 1995); Judicial
Watch, Inc. v. Clinton, 76 F.3d 1232, 1233 (D.C. Cir. 1996); Ass’n of Am.
Physicians, 997 F.2d at 914. Assuming that is correct, the complaint alleges
SERA was created to “implement advice or recommendations, coordinate or
integrate activities, create policies or law, or otherwise make decisions... ”
involving government policy relating to Everglades restoration, which is enough to
satisfy the D.C. Circuit’s test. Complaint ¶ 12.
The district court determined that even though the plain language of FACA
covers SERA, that language is trumped by what the court perceived to be the core
concern behind the enactment of FACA – protecting government decision making
from the undue influence of special interests. Relying primarily on Public Citizen
13
v. Dep’t of Justice, 491 U.S. 440, 109 S.Ct. 2558 (1989), the district court
decided, in effect, that the plain language reach of FACA exceeds the intended
grasp due to the overly broad statutory definition of “advisory committee.” The
district court essentially cured what it thought was Congress’ drafting mistake by
interpreting FACA to include only those groups or entities that present a danger of
undue influence by special interests, which it implicitly defined to be only those
whose membership includes at least one non-governmental entity representing
private interests. The court concluded that the failure of the complaint to allege
that the members of SERA were anything other than state and federal agencies or
officials “responsible to the heads of their agencies, the President and the public,”
or that they “sought to influence governmental policy regarding restoration
programs on the basis of parochial private interests” was fatal to the notion that
SERA was an advisory committee.
That reasoning is replete with errors and the conclusion it reaches is wrong.
To begin with, it is not even clear to us that the complaint fails to allege SERA
included private groups. The complaint says in one place that SERA was
composed of “federal, state, and other member agencies” and in another place
refers to it as made up of “federal and non-federal participants and consultants.”
Complaint ¶ ¶ 7, 48 (emphasis added). At worst, this language is ambiguous
14
(“other” and “consultants” could mean local government, or it could mean private
groups or parties), and because the court was ruling on a motion to dismiss, the
complaint should be construed in the light most favorable to the Tribe – it should
have been interpreted to include allegations of private party involvement in SERA.
That error really is not essential to our conclusion, however, because putting aside
that case-specific factual concern, there are legal flaws in the court’s reasoning.
The district court relied primarily on the Supreme Court’s decision in Public
Citizen, but that case involved a different issue entirely, and much of the reasoning
contained in the Public Citizen opinion actually runs counter to the district court’s
conclusion. For one thing, Public Citizen does not establish, as the district court
thought, that the sole or principal purpose of FACA was to protect government
decision making from the influence of special interests. To the contrary, what the
Supreme Court said was that “FACA’s principal purpose was to enhance the public
accountability of advisory committees established by the Executive Branch and to
reduce wasteful expenditures on them.” Public Citizen, 491 U.S. at 459, 109 S.Ct.
at 2569. Moreover, the bottom line result of the Public Citizen decision actually
runs against what the district court insisted was the principal purpose of FACA,
because in that decision the Supreme Court concluded that privately organized
interest groups whose advice and recommendations governmental officials and
15
agencies seek and are influenced by are not covered by FACA. That result cannot
be reconciled with the theory that the overriding purpose of FACA is to expose and
restrict special interest group influence.
Nor does the holding of Public Citizen otherwise support the position that
FACA did not cover SERA. FACA’s definition of advisory committee speaks in
terms of entities or groups that are either “established or utilized by one or more
agencies” for the purpose of obtaining advice or recommendations for the
President or other federal officials or agencies. 5 U.S.C. App. 2 § 3(2). Public
Citizen was not a case dealing with the meaning of the “established” alternative but
instead dealt exclusively with the “utilized” alternative. The Supreme Court
concluded that FACA did not apply to the Justice Department’s solicitation of
the American Bar Association Standing Committee on the Federal Judiciary’s
views on prospective judicial nominees, because that private committee was not
“utilized” within the meaning of the statutory definition of an advisory committee
by the President or by the Department of Justice in connection with their
evaluations of the judicial nominees. Public Citizen, 491 U.S. at 452-465, 109
S.Ct. at 2565-2572. Because the ABA committee involved in Public Citizen was
not established by federal agencies, that decision did not and could not have held
anything about the meaning or effect of the “established ... by one or more
16
agencies” language in the statute. That means it could not and did not hold
anything about the only language at issue in this case.
Of course, even when the direct, narrow holding of a judicial decision does
not fit the case at hand, we may obtain guidance by borrowing the decision’s
reasoning, extrapolating from its result, and using it as an analogy. The guidance
that can be obtained from Public Citizen points toward the conclusion that the
word “established” in the statutory phrase “established or utilized” should be
given its plain meaning. In refusing to give the word “utilized” its plain meaning,
which would have meant that privately organized committees like the ABA one
involved in Public Citizen were covered, the Supreme Court emphasized that,
“FACA’s principal purpose was to enhance the public accountability of advisory
committees established by the Executive Branch and to reduce wasteful
expenditures on them,” which “could be accomplished ...without ... includ[ing]
privately organized committees.” 491 U.S. at 459, 109 S.Ct. at 2569. That
principal purpose cannot be accomplished, however, without including
committees such as SERA which were organized by federal agencies.
There is even more specific guidance than that in Public Citizen about how
“established ... by one or more agencies” should be read. The Supreme Court
actually contrasted the more narrow and non-literal meaning that was to be given
17
to the word “utilized” with the broader and literal meaning that should be given to
the word “established.” It examined legislative history and reached the conclusion
that when the legislation reached the Conference Committee, the House bill’s
initial “focus on advisory committees established by the Federal Government, in an
expanded sense of the word ‘established,’ was retained.” Id. at 462, 109 S.Ct. at
2571. The Court explained that the phrase “or utilized” was added in conference
“simply to clarify that FACA applies to advisory committees established by the
Federal Government in a generous sense of that term, encompassing groups formed
indirectly ... ‘for’ public agencies as well as ‘by’ such agencies themselves.” Id.
The phrase applies, the Court said, not to privately organized groups, but to
“advisory groups ‘established,’ on a broad understanding of that word, by the
Federal Government.” Id. at 463, 109 S.Ct. at 2571. The ABA committee
involved in Public Citizen was not established in any sense of the word by the
federal government and its agencies, but SERA was, in every sense of the word.
There is nothing in the reasoning of the Public Citizen opinion to support
the conclusion that advisory committees established by federal agencies are not
covered by FACA unless they have private individual or group members the
inclusion of which threatens to infect the proceedings of government with the
influence of external special interests. To construe the statutory word
18
“established” in that restrictive, artificial way runs counter to the teachings of the
Public Citizen that “established” was used “in an expanded sense of the word,”
and “in a generous sense,” and the word should be applied with a “broad
understanding” in order to encompass all such committees formed directly or
indirectly by the federal government or its agencies. Id. at 462-63, 109 S.Ct. at
2571.
Not only that, but the Supreme Court explained its restrictive reading of
“utilized” was motivated by a desire to avoid the serious constitutional question
that would have been presented if that term had been read to include all privately
organized groups. See id. at 465-67, 109 S.Ct. at 2572-73. The constitutional
question that would have reared its head if the word “utilized” had been read
according to the plain and ordinary meaning of that term was so serious that the
district court and five members of the Supreme Court concluded that reading
“utilized” to mean utilized rendered that aspect of FACA unconstitutional. See id.
at 448, 466-67, 109 S.Ct. at 2563-64, 2573. The majority avoided that specter by
construing the term “utilized” in a way contrary to its plain meaning. In contrast,
there is no need to run from the plain meaning of “established” in order to escape a
serious constitutional question, because there is no serious constitutional question
19
raised by application of FACA’s requirements to every advisory committee
established by the federal government.
The Public Citizen decision does not give lower courts license not to apply
the plain meaning doctrine of statutory interpretation. There is, to be sure, language
in the opinion that might give that impression, see id. at 453-55, 109 S.Ct. at 2566-
67, but it must be read in context and in light of the 13 years of Supreme Court
decisions that have come since. One part of the context is that, as we have just
discussed, giving the word “utilized” its plain meaning probably would have
rendered that aspect of the statute unconstitutional. Another part of the context is
that giving the word “utilized” its plain meaning would have led to what the
Supreme Court believed was an absurd result. It would have meant, the Court
pointed out, that all privately organized groups which gave advice or made
recommendations to the President or any federal agency were covered, which in
turn would have meant the restrictions of FACA applied to “every formal and
informal consultation between the President ... and a group rendering advice,”
including, for example, the NAACP whose views he was seeking on nominations
to the EEOC, or leaders of the American Legion whose views he was soliciting
about some aspect of military policy, or his own political party whose views he
was receiving about selections to his Cabinet. Id. at 452-53, 109 S.Ct. at 2566.
20
The Court could not believe Congress intended the result that giving a plain
meaning interpretation to the word “utilized” would have brought about and
viewed the plain meaning of the word as calling for an odd result that could be
labeled absurd. Id. at 454-55 & n.9, 109 S.Ct. at 2567 &n.9. There is, of course,
a well-established absurdity exception to the plain meaning doctrine. See, e.g.,
Rowland v. California Men’s Colony, 506 U.S. 194, 200 & n.3, 113 S.Ct. 716, 720
& n.3 (1993)(“the common mandate of statutory construction to avoid absurd
results”); United States v. Brown, 333 U.S. 18, 26, 68 S.Ct. 376, 380 (1948); CBS
Inc. v. Primetime 24 Joint Venture, 245 F.3d 1217, 1228 (11th Cir.
2001)(“[C]ourts may reach results inconsistent with the plain meaning of a statute
if giving the words of a statute their plain and ordinary meaning produces a result
that is not just unwise but is clearly absurd.”)(internal marks and citation omitted);
Merritt v. Dillard Paper Company, 120 F.3d 1181, 1188 (11th Cir. 1997)(“statutory
language should not be applied literally if doing so would produce an absurd
result”). Public Citizen actually did nothing more than apply the absurd results
exception to the plain meaning rule. True, the opinion expressly disavowed the
idea that it was only applying the absurd results exception, Public Citizen, 491 U.S.
at 453 n.9, 109 S.Ct. at 2566 n.9, but it proceeded to apply that exception
nonetheless and reached exactly the result the exception dictated. Here, that
21
exception does not apply, because there is nothing absurd, or even questionable,
about applying FACA’s requirements to all advisory groups established by federal
agencies. It makes sense to do so in light of the statute’s stated purposes.
Any idea that Public Citizen went beyond the absurdity exception and
marked a permanent retreat from the plain meaning rule is dispelled by decisions of
the Supreme Court since Public Citizen in which the Court has reinstated plain
meaning to a position of primacy in the pantheon of statutory construction canons.
Just three years after that decision, the Supreme Court emphatically stated that “in
interpreting a statute a court should always turn first to one, cardinal canon before
all others,” and defined that rule as being “that courts must presume that a
legislature says in a statute what it means and means in a statute what it says
there,” so that “[w]hen the words of a statute are unambiguous, then, this first
canon is also the last: judicial inquiry is complete.” Connecticut Nat’l Bank v.
Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149 (1992) (internal quotations
and citation omitted). And earlier this year, the Court reminded us that the inquiry
into legislative intent ceases “if the statutory language is unambiguous and ‘the
statutory scheme is coherent and consistent.’” Barnhart v. Sigmon Coal Co., 122
S.Ct. 941, 950 (2002).
22
In between the Germain decision and the Barnhart decision there have also
been a host of other decisions which leave no doubt that, any intimation in Public
Citizen to the contrary notwithstanding, unambiguous language in a statute is more
than mere evidence of what Congress intended the law to be – it is the law. See,
e.g., United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 1677 (1997)
(“[W]e assume that in drafting this legislation, Congress said what it meant.”);
United States v. Gonzales, 520 U.S. 1, 6, 117 S.Ct. 1032, 1035 (1997) (“Given [a]
straightforward statutory command, there is no reason to resort to legislative
history.”); Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846
(1997) (“Our inquiry must cease if the statutory language is unambiguous and the
statutory scheme is coherent and consistent.”) (internal quotations and citation
omitted); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662
(1994) (even where “[t]here are...contrary indications in the statute’s legislative
history ... we do not resort to legislative history to cloud a statutory text that is
clear.”). Our circuit’s decisions have recognized and followed the plain meaning
rule in all its rigors. See, e.g., Harris v. Garner, 216 F.3d 970, 972 (11th Cir.
2000)(en banc); United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998)(en
banc); United States v. Maung, 267 F.3d 1113, 1121 (11th Cir. 2001); CBS Inc. v.
Primetime 24 Joint Venture, 245 F.3d at 1222-24.
23
The plain meaning rule still rules statutory construction, and it compels our
conclusion in this case: SERA is an advisory committee within the meaning of
FACA, because it was “established ... by one or more agencies, in the interest of
obtaining advice or recommendations.” The district court should not have
dismissed the complaint on the theory that FACA did not apply to SERA as it is
described in the allegations of the complaint.5
III. CONCLUSION
5
The defendants also contend that SERA is taken out of the scope of
FACA’s coverage by the Unfunded Mandates Reform Act, 2 U.S.C. §§ 1501 et.
seq., which was enacted by Congress in 1995 to curb the imposition of unfunded
federal mandates on state and local governments. That Act explicitly excludes from
FACA’s coverage meetings between federal officials and elected state, local,
and tribal officials (acting in their official capacities) if those meetings are held
solely for the purpose of “exchanging views, information, or advice relating to
the management or implementation of Federal programs established pursuant to
public law that explicitly or inherently share intergovernmental responsibilities or
administration.” 2 U.S.C. § 1534(b). The district court did not decide this issue
and neither do we, preferring to leave it to the district court in the first instance. Of
course, if the district court considers materials beyond the allegations of the
complaint in deciding this issue, it will need to comply with the last sentence of
Rule 12(b).
24
For the foregoing reasons, we disagree with the district court that the
complaint failed to state a claim upon which relief could be granted. Therefore,
we REVERSE and REMAND for proceedings consistent with this opinion, except
that we AFFIRM the dismissal as to defendants SERA and Hornung.
25