FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 4, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

___________________________

No. 01-16226

 ___________________________

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.
*

Honorable Adrian G. Duplantier, U.S. District Judge for the Eastern District

of Louisiana, sitting by designation.

2

____________________________

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
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

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
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

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
5

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. 
6

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
7

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 
8

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
9

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
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

 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
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

“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
12

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 
13

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
14

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
15

(“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
16

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
17

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
18

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 
19

“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
20

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. 
21

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
22

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). 
23

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.
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

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
25

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.