                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 92-2184.

 Penny BAILEY, Individually and as Next Friend of Elizabeth Bailey and Bryan Bailey, Minors,
and as Personal Representative of the Estate of John Bailey, Deceased, Plaintiffs-Appellants,

                                                    v.

                  McDONNELL DOUGLAS CORPORATION, Defendant-Appellee.

                                             April 29, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before DUHÉ and BARKSDALE, Circuit Judges, and HUNTER, Senior District Judge.1

          BARKSDALE, Circuit Judge:

          At issue in this second appeal of this Texas product liability action is the effect of the

government contractor defense, as formulated in Boyle v. United Technologies Corp., 487 U.S. 500,

108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), when claims of both manufacturing and design defects are

asserted. Penny Bailey appeals the summary judgment awarded McDonnell Douglas (M-D) in her

wrongful death action concerning an M-D aircraft. Following summary judgment for M-D based on

the go vernment contractor defense, an appeal to this court, and remand for clarification of the

summary judgment order, the district court amended that order to include Bailey's manufacturing

defect claim, as well as her design defect claim. We REVERSE as to the former.

                                                    I.

          Air Force Major John M. Bailey was killed in 1987 when his aircraft, an F-4D "Phantom II"

twin-engine jet fighter manufactured by M-D2, crashed during a "pitch-out" landing approach to

Carswell Air Force Base, near Fort Worth.3

   1
       Senior District Judge of the Western District of Louisiana, sitting by designation.
   2
       The aircraft had been delivered in 1967.
   3
     The pitch-out is a standard maneuver, in which the pilot overflies a portion of the runway then
breaks away, executing a tight, high-speed, steeply banked 360-degree turn back toward the
runway, with the aircraft descending at a relatively rapid rate. The maneuver proceeded smoothly
at first, but when the aircraft should have leveled out, it remained in a steep bank, its nose
        In February 1988, Penny Bailey, Major Bailey's wife, sued M-D under Texas law for wrongful

death, claiming strict liability for, and negligence in, the design, manufacture, and sale of a defective

product, and the failure to warn of dangers associated with that product. Throughout the litigation,

it was undisputed that the crash was caused, at least in part, by a failure in the bellows assembly in

the aircraft's longitudinal feel trim system, which relates to control of the aircraft's "pitch", or nose

up/nose down movement.4 Bailey's theory of liability was that a defect in the metallurgic content of

the bellows canister caused a loss of bellows pressure during the flight; that Major Bailey's response

to the resulting "heavy stick" sensation was to "over control" the aircraft with a number of rapid

movements on the control stick; and that the rapid stick inputs caused the controls to "lock" with

the plane in a nose-down position. The alleged tendency of the controls to lock formed the basis of

the design defect claim, and the alleged metallurgic defect in the bellows canister formed the basis of

the manufacturing defect claim. M-D denied that the controls had locked, and asserted that the

bellows failure was caused by careless maintenance of the system by Air Force personnel, not by any

product defect.

        In November 1989, after extensive discovery, M-D moved for summary judgment, contending

that the basis of Bailey's theory of liability had eroded when the two Air Force investigators who had

studied the remains of the flight control system recanted their "imprecise" use of the term "lock" in

their report to describe what happened to the controls. Bailey contested this, and also presented the

affidavit of her expert, Dr. Paul Packman, who articulated the theory of manufacturing defect, based

upon his observation of an unusual crack in the remains of the bellows canister. Although, as noted,

the complaint contained a manufacturing defect claim, this was the first time that the manufacturing

defect theory was articulated.

continuing to drop as it rapidly lost altitude, and ultimately crashed.
   4
     Because of the size and weight of the F-4D, a pilot cannot adequately control it by manual
means. Therefore, it is controlled by hydraulic power, which removes the pilot's sense of feel as
he grasps the control stick. The feel trim system is designed to simulate the forces a pilot would
feel if he were controlling the plane manually. It is operated by a bellows system that uses air
pressure differentials to transmit the artificial "feel" to the pilot's hand. It is undisputed that the
accident was caused, at least in part, by a loss of bellows pressure in the longitudinal section of
the feel trim system.
          M-D moved to strike Dr. Packman's affidavit, contending that it untimely introduced a new

theory of liability. While that motion was pending, Dr. Packman retreated from his position, at least

somewhat, when the results of a metallurgic examination of the bellows components conflicted with

his theory.5 Ultimately, in August 1990, the district court denied M-D's motion to strike the affidavit,

and also denied summary judgment, citing a genuine issue of material fact.

          Shortly before those rulings, M-D filed a second motion for summary judgment (which

eventually gave rise to this appeal), relying on the government contractor defense. In its supporting

memorandum, it discussed only the control system's alleged tendency to lock, although, as noted, the

metallurgic defect theory had already surfaced. Likewise, despite M-D's prayer that all claims be

dismissed with prejudice, Bailey made no mention of the metallurgic defect theory in opposing the

motion. In response, Bailey did, however, incorporate, inter alia, the discovery materials and

affidavits in the record. In January 1991, the district court granted the motion and dismissed the case.

          Bailey appealed, conceding that her design defect claim was properly dismissed, but

contending that her manufacturing defect claim was not.6 In late 1991, our court affirmed summary

judgment on the government contractor defense and the design defect claim, but vacated and

remanded for further consideration of the manufacturing defect issue, stating that it was unclear

whether the district court had intended to dismiss that claim. Bailey v. McDonnell Douglas Corp.,

947 F.2d 1486 (5th Cir. Oct. 21, 1991) (unpublished).

          In January 1992, the district court heard oral argument, then amended its prior order to

include that claim in the summary judgment. This appeal springs from that order.

                                                    II.

           The government contractor defense, as formulated in 1988 by the Supreme Court in Boyle,

   5
    The parties dispute the extent to which Dr. Packman abandoned his theory. Although he
admitted that there was no evidence of a metallurgic defect in the area of the suspicious crack, he
retained some suspicion about the cause of the bellows leak and wanted to "finish off that last five
percent" of his investigation. It is unclear whether he still suspected some type of manufacturing
defect. At oral argument in our court, Bailey reiterated that her manufacturing defect claim was
based on the theory of metallurgic defect in the canister.
   6
       Bailey has not challenged the disposition of her failure to warn claim.
generally immunizes government contractors from civil liability arising out of the performance of

federal procurement contracts. 487 U.S. at 505-06, 108 S.Ct. at 2515. It is a federal common law

doctrine whereby state law is preempted in certain situations because it presents a "significant

conflict" with identifiable federal interests. Id. at 507, 108 S.Ct. at 2516. Specifically, it is designed

to protect the exercise of discretion by government officers in "the selection of the appropriate design

for military equipment to be used by our Armed Forces". Id. at 511, 108 S.Ct. at 2518.

        The defense stems from the immunity enjoyed by the United States from claims based on the

performance of so-called "discretionary functions", pursuant to the Federal Tort Claims Act (FTCA),

28 U.S.C. § 2680(a).7 Boyle, 487 U.S. at 511, 108 S.Ct. at 2518. The rationale behind the defense

is that, in its absence, the financial burden of liability judgments against government contractors

ultimately would be passed through to the United States. Id. at 511-12, 108 S.Ct. at 2518. As noted

in Boyle: "It makes little sense to insulate the Government against financial liability for the

[discretionary decision] that a particular feature of military equipment is necessary when the

Government produces the equipment itself, but not when it contracts for the production." Id. at 512,

108 S.Ct. at 2518.

         In order to effectuate this objective, Boyle provides that "[l]iability for design defects in

military equipment cannot be imposed, pursuant to state law, when (1) the United States approved

reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the

supplier warned the United States about the dangers in the use of the equipment that were known to

the supplier but not to the United States". Id. (emphasis added). "The first two of these conditions

assure that the suit is within the area where the policy of the "discretionary function' would be

frustrated—i.e., they assure that the design feature in question was considered by a Government

officer, and not merely by the contractor itself." Id. "The third condition is necessary because, in its

absence, the displacement of state tort law would create some incentive for the manufacturer to

withhold knowledge of risks, since conveying that knowledge might disrupt the contract but

   7
   Section 2680(a) creates an exception to the consent to suit otherwise established by the
FTCA, 28 U.S.C. § 1346(b).
withholding it would produce no liability." Id.

       Of Boyle's three conditions, in issue is the second—conformity with government

specifications. As noted, the district court previously held, and our court affirmed, that M-D was

entitled to invoke the defense with respect to Bailey's design defect claim, which was based on the

control system's alleged tendency to lock. This holding included a finding that the feel trim system,

including any tendency to lock, conformed to the government's specifications (Boyle's second

condition). On remand, M-D contended that this finding of conformity on the design defect claim

compelled a like ruling on the manufacturing defect claim. Bailey countered by contending first, that

the Packman affidavit established a material fact issue as to a manufacturing defect8; and second,

that, in any event, because the government contractor defense applies only to design defect claims,

the summary judgment motion did not implicate the manufacturing defect claim.

       In ruling, the district court stated that Bailey "fail[ed] ... to articulate the precise nature of the

manufacturing defect", and that her only "theory of the case [was] that a defect in the design of the

feel trim system ... caused the ... lock and that this occurrence" caused the crash. It then agreed with

M-D, and reasoned that its prior finding that "the aircraft conformed to those specifications"

necessarily precluded the existence of a manufacturing defect. It concluded:

               Because the Court previously determined, and the Court of Appeals affirmed, that no
       fact questions exist concerning whet her the plane conformed to the Government's design
       specifications, the Court is of the opinion that the manufacturing defect question has been
       resolved. As stated by the Eleventh Circuit Court of Appeals:

               To say that a product failed to conform to specifications is just another way of saying
               that it was defectively manufactured.

       Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.198[9] ) [, cert. denied, 494
       U.S. 1030, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990) ].

In relying on the statement from Harduvel (quoted by our court in Mitchell v. Lone Star Ammunition,

Inc., 913 F.2d 242, 247 (5th Cir.1990)), the district court apparently assumed that the converse must

also be true—i.e., that a claim of manufacturing defect is equivalent to an allegation that the

equipment failed to conform to specifications. In the district court's apparent estimation, therefore,

   8
    Bailey also made reference to other possible manufacturing defects that Dr. Packman might
address. Obviously, the district court could consider only material in the record.
the question of conformity with specifications could never be divorced from the question of

manufacturing defect.

        Thus, the district court did not apply the defense to Bailey's manufacturing defect claim. In

fact, as noted, the theory supporting it was not really argued. After stating that there was a genuine

issue of material fact on the manufacturing defect, Bailey contended that the motion did not apply to

that defect. The district court simply used the finding of conformity—made while considering only

the design defect theory—to preclude the existence of any manufacturing defect. We address that

ruling first.

        After reviewing that ruling, we face two other related—and principal—issues: (1) whether

Bailey's labeling her claim as one for a manufacturing defect precludes, per se, application of the

government contractor defense; and (2) if not, and in light of the fact that the district court did not

rule on whether there was a material fact issue regarding the manufacturing defect claim, whether

summary judgment was nonetheless appropriate because Bailey failed to properly present her

manufacturing defect theory in opposition to the motion. As always, we review an award of summary

judgment de novo, using the same standards as are applied by a district court. E.g., Solomon v.

Walgreen Co., 975 F.2d 1086, 1089 (5th Cir.1992).

                                                   A.

        As stated, before reaching the two principal issues, we address the district court's broad ruling

that a manufacturing defect claim is equivalent to asserting that the item failed to conform to

specifications. We hold that, for two reasons, it erred.

          First, it is possible to have an allegedly defective feature about which the government

specifications are silent. For example, if the government specifications regarding the bellows canister

did not specify the type or quality of metal to be used, a metallurgic defect in the canister would not

be inconsistent with a finding that the canister conformed to specifications.9

   9
    We note that if a court were applying the defense to a claim based upon such a feature (which
the district court did not do), Boyle's first condition—reasonably precise specifications—would
probably be in issue with respect to that feature. E.g., Trevino v. General Dynamics Corp., 865
F.2d 1474, 1486 (5th Cir.) (first condition lacking where government specifications set only
general performance standards for a submarine hangar diving chamber, and were "silent" on
        Second, Boyle makes clear that the requirements of "reasonably precise specifications" and

conformity with them refer to the particular feature of the product claimed to be defective. 487 U.S.

at 512, 108 S.Ct. at 2518 (the first two conditions address "the design feature in question") (emphasis

added); see also Trevino v. General Dynamics Corp., 865 F.2d 1474, 1486 (5th Cir.1989) (Boyle

protects government contractors from liability only where "discretion over the design feature in

question was exercised by the government") (emphasis added).10 Here, there were two allegedly

defective features—the control system's tendency to lock and the bellows canister's metallurgic

content. M-D's evidence in support of its motion established only that the first feature conformed to

government specifications. No evidence was introduced to support a finding that the canister's

metallurgic content conformed with government specifications. The scope of the district court's

finding, therefore, is limited to the particular feature in issue when it was made, notwithstanding its

broad wording to the contrary.11

                                                  B.

        We next consider whether the manufacturing defect label precludes, per se, application of

the defense; and, if not, and even though the district court did not determine whether there was an

issue of material fact, whether summary judgment was nonetheless appropriate because Bailey failed

precise location of allegedly defective vent valve and safety devices), cert. denied, 493 U.S. 935,
110 S.Ct. 327, 107 L.Ed.2d 317 (1989).

                In Boyle, the Court explained this situation as one in which "the [state law] duty
        sought to be imposed on the contractor is not identical to one assumed under the contract,
        but is also not contrary to any assumed". 487 U.S. at 509, 108 S.Ct. at 2517. "If, for
        example, the United States contracts for ... an air conditioning-unit, specifying the cooling
        capacity but not the precise manner of construction, a state law imposing ... a duty of care
        to include a certain safety feature would not be a duty identical to anything promised the
        Government, but neither would it be contrary". Id. In that case, "[t]he contractor could
        comply with both.... No one suggests that state law would generally be pre-empted in this
        context". Id.
   10
     This principle clarifies the statement: "[t]o say that a product fails to conform to
specifications is just another way of saying that it was defectively manufactured". Mitchell, 913
F.2d at 247. Obviously, not all deviations from specifications will constitute defective (i.e.,
unreasonably dangerous) conditions. This statement logically refers, therefore, only to the
particular deviation that is alleged to be defective.
   11
     Naturally, had both features been better presented to the district court before the motion was
decided, this problem would not have arisen.
to present adequate evidentiary support for her theory of manufacturing defect in opposition to M-D's

motion.12 Asserting here, as she did to the district court on remand, that, as a matter of law, the

defense can apply only to "design defect" claims, Bailey maintains that she had no burden to present

her manufacturing defect theory in opposition to M-D's motion, in spite of M-D's prayer that all

claims be dismissed. Initially, we note that, although Boyle involved only a design defect claim, the

Court did not indicate whether the defense was limited to that situation.13

                                                   1.

          We first must determine whether the "manufacturing defect" label on Bailey's claim precludes,

per se, application of the government contractor defense to it. On first glance, our court's decisions

regarding the scope o f the defense may seem inconsistent. In McGonigal v. Gearhart Industries,

Inc., 851 F.2d 774 (5th Cir.1988), we stated: "it remains the law of this Circuit [after Boyle ] that

military contractor immunity does not apply in cases of defective manufacture: "federal law provides

no defense to the military contractor that mismanufactures military equipment' ". Id. at 777 (quoting

Bynum v. FMC Corp., 770 F.2d 556, 573 n. 21 & 574 (5th Cir.1985)). In Trevino, 865 F.2d at 1481

n. 6, we reiterated: "[a] manufacturer is liable for manufacturing defects no matter who designed or

approved the specifications". Likewise, in Mitchell, 913 F.2d at 246-47 & n. 9, we rejected an

argument that the defense applied to a manufacturing defect resulting from the government's design

of the manufacturing process, st ating that this would "extend the defense unnecessarily".

Furthermore, in Skyline Air Service, Inc., v. G. L. Capps Co., 916 F.2d 977, 980 (5th Cir.1990), we

stated that manufacturing defect claims are "arguably not covered by the [defense]". (Emphasis

added.)

          In contrast to these statements, however, we stated in Smith v. Xerox Corp., 866 F.2d 135,

   12
     As she did in district court at the remand hearing, Bailey contends that Dr. Packman's
affidavit did present a genuine issue of material fact, even after his subsequent retreat. For the
reasons discussed infra, we need not reach this issue and instead assume, without deciding, that
the affidavit did not create a genuine issue of material fact.
   13
      For the reasons explained infra, we interpret Boyle's statement that the defense bars
"[l]iability for design defects ", 487 U.S. at 512, 108 S.Ct. at 2518 (emphasis added), to mean
liability for defects in the government specifications.
137 (5th Cir.1989), handed down by a different panel on the same day as Trevino, that "Boyle ... held

that the government contractor defense applies to both negligence and strict liability actions, as well

as to other state law tort claims". We then affirmed a summary judgment based on the defense that

dismissed all claims, including manufacturing defect, design defect, failure to warn, and breach of

warranty. Id. at 141.

        After carefully reviewing these and other cases, we conclude that the seeming inconsistencies

stem from uses of the term "manufacturing defect", instead of nonconformity with government

specifications, and the term "design defect", instead of a defect in the government specifications.14

Although usually there will be no significant difference between these terms and the intended

meanings, that will not always be the case. As explained above, a manufacturing defect is not

necessarily equivalent to nonconformity with government specifications, because those specifications

may be silent about some features, making possible the existence of a manufacturing defect in spite

of conformity with the specifications. Likewise, such silence in the specifications may leave room for

design discretion by the manufacturer, making possible the existence of a design defect in spite of

conformity with the government specifications.15

        Furthermore, the denomination of a claim as one of "manufacturing defect" or "design defect"

is a matter of state law, which varies by state. In Harduvel, for example, the Eleventh Circuit was

faced with a presumption under Florida law that "where a product is destroyed in an accident, and

the plaintiff presents evidence to negate possible causes other than a product defect, an inference of

manufacturing defect arises". 878 F.2d at 1317. Thus, although the alleged defect was one inherent

in the government specifications, the plaintiff's recovery was for manufacturing defect because the

aircraft was almost completely destroyed.

         Because of such peculiarities in state law, the Harduvel court held that the state law

   14
    Throughout this opinion, we use the term "government specifications" rather than
"government designs" to avoid further confusion over terminology.
   15
     Again, we note that where the government specifications are silent with respect to the
particular feature in issue, Boyle's first condition—government approved reasonably precise
specifications—would probably be in issue if the defense were applied to that feature.
denomination of a claim as one of "design" or "manufacturing" defect could not govern the

applicability of the government contractor defense. Id. It explained: "[w]ere this not so, state law

could operate either to defeat the defense or to expand it improperly, and the defense could not be

applied with the uniformity that is a key justification for application of federal common law". Id. It

concluded that, despite its state law label, the claim was for a design defect for purposes of federal

law, precluding recovery.

        We agree with the Eleventh Circuit that whether the defense will apply cannot be determined

by the label attached to the claim. Strict adherence to the three Boyle conditions specifically tailored

for the purpose will ensure that the defense is limited to appropriate claims. In evaluating an assertion

of the defense, therefore, the state law label on the claim(s) sought to be dismissed is irrelevant.

        Upon closer analysis, our prior decisions are consistent with this principle. In McGonigal,

for example, despite the above-quoted statement and the fact that the only theory presented was

negligent manufacture, we proceeded to determine that the government contractor defense did not

apply because Boyle's second condition was not met. 851 F.2d at 777. Likewise, in Mitchell, despite

our rejection of the above-mentioned argument, we held that the defense did not apply because the

jury found that the defective mortar shell failed to conform to the government specifications. 913

F.2d at 248. Additionally, when read in context, it is clear that our use of the term "manufacturing

defect" in the above-quoted statement from Trevino refers simply to a failure to meet Boyle's second

condition. 865 F.2d at 1481 n. 6 ("the second element functions [in part] to remove the government

contractor defense for manufacturing defects"). Finally, in Smith, we stated that summary judgment

on the manufacturing defect claim was proper, based on Boyle's second prong. 866 F.2d at 139.

        In sum, the government contractor defense does not necessarily apply only to claims labeled

"design defect". Whether it will apply to a particular claim depends only upon whether Boyle's three

conditions are met with respect to the particular product feature upon which the claim is based.16

As stated by the Supreme Court, those conditions are designed to assure that the defense will apply

   16
     This means, of course, that in cases involving allegations of multiple defective features,
summary judgment may not be appropriate if the defense applies to only some of those features,
unless it is clear which features relate to which claims.
only where the discretionary function policy behind it would be frustrated. Bailey's contention that

M-D's motion necessarily related only to her design defect claim, therefore, lacks merit.

                                                   2.

        Having determined that M-D's motion based on the defense was not necessarily limited to

Bailey's design defect claim, we must determine whether M-D established entitlement to summary

judgment with respect to the manufacturing defect claim. As noted, in its order on remand, the

district court stated that Bailey "fail[ed] to articulate the precise nature of the manufacturing defect."

But, as also noted, Bailey, at the post-remand hearing, referenced the Packman affidavit on file and

reiterated Dr. Packman's desire to further investigate the possibility of a manufacturing defect.17

        Because the government contractor defense is an affirmative one, M-D bore the burden of

proof to establish it. "Where ... the moving party [will bear] the burden of proof at trial, it must come

forward with evidence [on summary judgment] which would entitle it to a directed verdict if the

evidence went uncontroverted at trial." International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257,

1264-65 (5th Cir.1991) (internal quotation omitted), cert. denied, --- U.S. ----, 112 S.Ct. 936, 117

L.Ed.2d 107 (1992). In this situation, only after the moving party meets thi s burden must the

non-moving party produce its "significant, probative evidence". Id. at 1265 (citing Chanel, Inc. v.

Italian Activewear of Florida, Inc., 931 F.2d 1472, 1477 (11th Cir.1991)).

        Because M-D did not present evidence that the three Boyle conditions were satisfied with

respect to the metallurgic content of the bellows canister, upon which Bailey's manufacturing defect

claim was based, it did not meet its burden of proof with respect to that claim; and, therefore, the

burden did not shift to Bailey to present evidence to support her claim. In so holding, we emphasize

that the metallurgic defect theory had arisen before M-D moved for summary judgment; it is not

being held to the impossible burden of negating the possibility of yet unarticulated theories of defect.18

   17
     Additionally, the day before the hearing, Bailey submitted an affidavit by Dr. Packman to that
effect. She agrees that because it was untimely, this affidavit should not have been considered in
the district court.
   18
     As noted, for the first summary judgment motion, the district court denied M-D's motion to
strike Dr. Packman's affidavit, which articulated the theory.
                                            III.

      For the foregoing reasons, the summary judgment as to the manufacturing defect claim is

REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

      REVERSED and REMANDED.


          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                 December 11, 2007
                                 No. 06-50425
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JAMES ALLEN CARAVAYO

                                            Defendant-Appellant

                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 3:05-CR-1581

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      The attorney appointed to represent James Allen Caravayo has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967). Caravayo has filed a response. The record is insufficiently
developed to allow consideration at this time of Caravayo’s claim(s) of ineffective
assistance of counsel. See United States v. Cantwell, 470 F.3d 1087, 1091
(5th Cir. 2006). Our independent review of the record, counsel’s brief, and

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                 No. 06-50425

Caravayo’s response discloses no nonfrivolous issue for appeal. Accordingly, the
motion for leave to withdraw is GRANTED, counsel is excused from further
responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

                                       2


54 Mich. App. 215 (1974)
220 N.W.2d 756
WABEKE
v.
CITY OF HOLLAND
Docket No. 18076.
Michigan Court of Appeals.
Decided June 27, 1974.
James W. Bussard, for plaintiffs.
John R. Marquis, Deputy City Attorney, for defendant.
Before: ALLEN, P.J., and T.M. BURNS and R.L. SMITH,[*] JJ.
ALLEN, P.J.
Plaintiffs, the owners of certain residential lots which abut South Shore Drive in the City of Holland, have challenged the validity of special assessments levied upon them by the City of Holland to help pay for the widening, resurfacing, draining and curbing of South Shore Drive.
Circuit Judge Harold Van Domelen found that the plaintiffs would receive no special benefits from the proposed improvements to South Shore Drive over and above the benefit conferred on the community in general, and permanently enjoined the City of Holland from levying a special assessment *218 upon plaintiffs. From that decision, defendant has appealed.
South Shore Drive is a two-lane street commencing at the juncture of 16th and 17th Streets, and generally follows the shoreline of Lake Macatawa. The street surface is blacktop, and averages about 22 feet in width with gravel shoulders. The surface of the street is in generally poor condition, and is characterized by cracks, broken edges and holes. The city plans to install storm sewers, resurface the street to a width of 25 feet, and install curbing and gutter of 1-1/2 feet on each side for a total width of 28 feet, with the intersections flaring to 36 feet. The estimated cost of said project is $741,000, of which 23% is proposed to be specifically assessed against the property owners at about $10 a front foot. It is estimated that the residents on South Shore Drive generate about 25% to 28% of the traffic thereon. The character of the street is mainly residential, containing homes valued from $15,000 to $100,000. There are also a few small commercial establishments, such as a grocery store, small restaurant, and antique shop.
Plaintiffs argue that while the improvements would be a general benefit to the city and community as a whole, no special benefit would be conferred upon them. They in fact argue that they would suffer a detriment as far as increased traffic hazards, loss of parking space, increased air and noise pollution and a decrease in property values were concerned. Defendant maintained that the road needed the improvement, and that the residents would indeed enjoy special benefits, particularly in the form of better drainage, and asserts that the case falls within the rule of Axtell v City of Portage, 32 Mich App 491; 189 NW2d 99 (1971), app dismissed, 385 Mich 786 (1972).
*219 Relying upon Fluckey v City of Plymouth, 358 Mich 447; 100 NW2d 486 (1960), and Brill v Grand Rapids, 383 Mich 216; 174 NW2d 832; 46 ALR 3d 121 (1970), the trial judge found in favor of plaintiffs. According to Fluckey, supra, the following rule is applicable to the instant case:
"The point here is more fundamental: where, viewed in its entirety, no benefit upon abutting property owners has been conferred by the improvement, but rather a detriment suffered, a special assessment based upon the enhancement of the value of the property is a fraud in law upon such property owners." 358 Mich 447, 454.
According to 46 ALR3d 127, 135-136, Anno: Widening Street  Special Assessment:
"[M]odern Michigan authority has firmly recognized that a street widening does not necessarily confer a benefit, and indeed may be found in appropriate circumstances to constitute a detriment rendering the collection of a special assessment invalid, especially, though apparently not necessarily, where residential properties are affected."
The issue before us is whether the proposed project is one of the "appropriate circumstances" which invalidates a special assessment. Does the proposed project fall within the rule of Fluckey and Brill or within Axtell? Before answering this question it will be helpful to set forth the standards upon which our decision is based. Recent street widening decisions in Fluckey, Brill, and Axtell, together with prior case law, offer a basis upon which these standards are formulated.
1. Where the suit is brought in equity the record is reviewed de novo. However, an appellate court reviewing de novo will not ordinarily disturb findings of fact unless the court concludes it would *220 have arrived at a different result had it been in the position of the trial judge. In re Hartman Estate, 51 Mich App 192, 203-204; 215 NW2d 202, 208 (1974).
2. The power to levy a special assessment for street improvement purposes rests upon the benefit which the assessment confers on the abutting property and which benefit is different from general benefit conferred upon the community at large. 14 McQuillin, Municipal Corporations (3d Ed), § 38.02, p 18. Municipal corporations may levy special assessments based upon the theory that a special benefit over and above the general benefit conferred upon the municipality as a whole, is conferred upon such property. Axtell v City of Portage, supra.
3. Whether there is no benefit at all, or the amount of benefit, is peculiarly a decision best made by the legislative body imposing the assessment. Courts are reluctant to interfere in this legislative determination unless there is fraud, mistake, discrimination or where the absence of the benefits claimed appears with certainty. Frischkorn Investment Co v Detroit, 257 Mich 546, 552; 241 NW 903 (1932).
4. The concept that road improvements, including street widening in particular, automatically result in special benefits even when so determined by the legislative body, may be overturned where the record as a whole "stretche[s] credulity" or "shows beyond fair dispute" an overall harm to the property owners assessed, Brill v Grand Rapids, 383 Mich 216, 220; 174 NW2d 832 (1970). Pavement widenings to double the width of what theretofore had been a quiet residential street and the purpose of which was to provide for fast and heavy motor traffic and where the whole character of the street *221 and neighborhood is changed are held as a matter of law to confer no special benefit. Fluckey, supra; Brill, supra.
Application of these standards leads this Court to conclude the trial court was in error in the present case. We do not agree that the present situation is governed by Fluckey and Brill. Both of those cases involved doubling the width of the street from two lanes to four lanes, from 22 feet to 44 and 48 feet. Both were connectors leading from a belt highway to the inner city. By contrast, South Shore Drive will remain two lanes, its paved portion to be widened only from its present 22 feet to 25 feet plus 1-1/2 feet curb and gutter on each side and, only indirectly, through 16th Street will connect with a belt highway. The belt highway connection already exists, is not part of the expanded program and lies more than two miles from South Shore Drive with the heart of the city located between. Under these circumstances we cannot conclude with certainty or beyond fair dispute that the modest widening program on South Shore Drive will significantly increase traffic. The scope of the work proposed in the instant case is far less ambitious than in Axtell, where in an essentially residential neighborhood a proposal to widen from two lanes to four lanes, regrade, eliminate trees, and install curb, gutter and sewer was found to confer special benefits.
In Axtell, a principal factor leading the court to conclude the special assessment was proper was the remote likelihood that the project would cause the neighborhood to lose its essential residential character.
"The Michigan Supreme Court has held that the widening of a residential street into a four-lane main artery would not confer the type of benefit which would *222 subject the abutting owners to a special assessment. Brill v City of Grand Rapids, 383 Mich 216; 174 NW2d 832; 46 ALR3d 121 (1970); Fluckey v City of Plymouth, 358 Mich 447; 100 NW2d 486 (1960). However, both of the Supreme Court cases cited dealt with the situation where a residential street was converted, more or less, into a highway. The whole character of the street and the neighborhoods had been changed as a result of the improvements, causing a great deal of deterioration in the quality of life experienced by abutting land owners." 32 Mich App 491, 495.
The South Shore Drive widening is purposely designed to maintain the esthetics and present character of the neighborhood. An earlier proposal to widen South Shore Drive to four lanes, eliminate its curves, remove 58 trees, and level dips and valleys in the roadway was rejected in 1969 by the mayor and council following a public hearing. A new and less ambitious program was then developed to maintain the essential character of the street, widen to two lanes, tear down three trees, and leave untouched the present curves and grade. Following public hearings it was approved by the city council and is the proposal in litigation before us. As to the change in policy brought about by the public hearings on the original proposal, we quote the testimony of the mayor:
"Q. Did the comments you heard at these hearings affect your judgment in that respect?
"A. I would say those are the only reasons I changed my opinion. This is, as I stated before, a feeder road and granted it serves South Shore Drive, it also serves the area north and south of South Shore Drive as well as the dead-end area at Lake Michigan, but I felt this was a unique road and there are others in our community, and the people actually convinced me to keep that character. We dropped from 58 trees down to 3 trees in the proposed project. We are going to keep the curves in the road. There is only a couple of bad safety spots *223 which we'll still have to cut down the tops for clear view areas, but basically we are trying to keep the character, the intent of the present road." (Emphasis supplied.)
The trial court further found that in certain respects plaintiffs would suffer injury by reason of the street program. Specifically, he cited 1) the elimination of shoulder parking; 2) the increased difficulty of backing out of a driveway; 3) the movement of traffic closer to homes; 4) added volume of traffic; 5) increased speed; 6) loss of parking spaces in front of certain commercial establishments. Based upon our review de novo of the record we cannot agree as to the first three findings. On the remaining three we agree with the facts but disagree as to the weight to be given thereto.
Car counts taken along the entire 1.7 mile stretch disclosed that during daylight there were from 1 to 3 cars parked. Nighttime counts found 1.05 to 2.94 cars parked. This count was not rebutted. We find it de minimis and insufficient to justify injunction. Likewise, a survey of residences abutting on South Shore Drive indicated that of some 134 to 149 homes, 94 either had turn-around drives or used a side street as an exit. 39 had no way to turn a car about. To accommodate these residents the approved plans called for a ten-foot curb and gutter opening at each driveway plus an additional ten feet on each side. This will allow 30 feet of uncurbed entrance which should permit continuance of the former practice of maneuvering a vehicle parallel to the street before exit. As to the finding that traffic was moved closer to residences we observe that it is but 1-1/2 feet of paved surface and is all within the existing city right of way. Further, the record discloses that of the five *224 residential owners who testified for plaintiffs, four would in fact receive an increase in front yard area. Installation of curb would prevent vehicles from driving on the shoulder with the result that for most residents the allowable traveled portion of the roadway will be further distant from the home than now.
Keeping in mind the standards of review mentioned earlier, does it appear with certainty or beyond fair dispute that there is not a special benefit accruing to the abutting property owners as distinguished from a general benefit to the community? Obviously there is a public benefit in the smoother surface, the wider two lanes and the addition of turn lanes at intersections. These are benefits which abutting property owners will share in common with other motorists. But we also find a special benefit over and above these benefits. The record is replete with testimony that stormwater and debris now collects along the road shoulder and runs onto private property, that many property owners complain about stones and gravel thrown onto their lawns, that the absence of curb makes it impossible to sweep the street as is done by the city in other residential areas, that homeowners are placed in danger by oncoming traffic which swerves onto the gravel shoulders, and that dust from the shoulders is a nuisance. Multiple photographs were introduced depicting frequent and unattractive pools of water, mud and mire along the roadbed and front yards. The proposed project will eliminate the accumulated stormwater, stop the throwing of gravel onto front lawns, eliminate mud and dust, and enable the city to sweep and extend leaf pickup service to the street. Importantly, for most homeowners, curb installation *225 will actually increase the lawn size. The esthetics of the area will be improved and made consistent with other subdivisions in the city.
Abutting property owners are not charged for the entire cost of the proposed improvement but only for 23% thereof, with the balance to be spread against the city as a whole. This appears reasonable since the record shows that residents of South Shore Drive contribute from 25% to 28% of the traffic thereon. This Court is aware that the area involved in litigation contains some of the choicest site locations in the city. Rejection of the proposed special assessment will have the result of having other citizens in the community pay for the entire improvement. The property owners on South Shore Drive will receive without charge pavement, storm sewer, curb, and gutter for which residents in other parts of the city must pay either in full or the major cost thereof. In the past 20 years some 90 paving projects had been specially assessed by the city including 11 streets designated major.
Our decision in this case is not to be construed as holding that under no circumstances may a street widening of no more than two lanes be found to confer no special benefit or that the legislative body's determination of benefit in such instances shall remain inviolate. We conclude only that based on the extensive record in this case there is insufficient evidence to overturn the determination of special benefit made by the governing body of the city. The absence of benefits claimed does not appear with certainty. Overall harm to the property owner assessed is not shown beyond fair dispute.
Reversed. No costs allowed, a public question being involved.
R.L. SMITH, J., concurred.
*226 T.M. BURNS, J. (dissenting).
I cannot agree with the majority's view that the residents on South Shore Drive will receive special benefits from the proposed improvements over and above those conferred on the community in general.
In order to levy a valid special assessment for a public improvement, there must be a special benefit conferred upon the property assessed over and above that conferred upon the community itself. Brill v City of Grand Rapids, 383 Mich 216; 174 NW2d 832 (1970); Fluckey v City of Plymouth, 358 Mich 447; 100 NW2d 486 (1960).
In this case the trial court found that the amount of traffic on the street in question makes it practical for the residents to back out of their drives onto the shoulders in order to gain a safer entrance to a traffic lane. These shoulders are used for parking by adjacent residents. The purpose of improving the street is to facilitate the movement of traffic over it. However, while the widening, resurfacing and general improvement of the street will attract more use, the trial court found that such increased use will also increase the hazards in getting on and off the street for its residents. The installation of curbs and gutters will eliminate the present practice of backing out of drives onto the shoulders before entering a traffic lane, thus increasing the danger of entering the street. At least two businesses will be adversely affected by the elimination of presently used parking space for their customers. Furthermore air and noise pollution will be increased and moved closer to the homes on this street. The proposed improvements will tend to increase traffic and its speed which will not be beneficial to the abutting owners but more likely than not will be detrimental to residential property.
These are the factors upon which the trial court *227 based its conclusion that the residents on South Shore Drive will receive no special benefits from the proposed improvements.
In the recent case of In re Hartman Estate, 51 Mich App 192, 203-204; 215 NW2d 202 (1974), we explained our duty in regard to reviewing equity cases de novo when we quoted from our Supreme Court's decision in Biske v City of Troy, 381 Mich 611, 613-614; 166 NW2d 453, 455 (1969):
"`"We hear and consider chancery cases de novo on the record on appeal. Johnson v Johnson, 363 Mich 354; 109 NW2d 813 (1961); Osten-Sacken v Steiner, 356 Mich 468; 97 NW2d 37 (1959); Futernick v Cutler, 356 Mich 33; 95 NW2d 838 (1959); A&C Engineering Co v Atherholt, 355 Mich 677; 95 NW2d 871 (1959); Straith v Straith, 355 Mich 267; 93 NW2d 893 (1959); Ball v Sweeney, 354 Mich 616; 93 NW2d 298 (1958). This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after such an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge."' Christine Building Co v City of Troy, 367 Mich 508, 517-518; 116 NW2d 816, 820 (1962)."
In considering this equity cause de novo according to the rule enunciated above, this writer agrees with the trial court's decision that the residents bordering on South Shore Drive will receive no special benefits from the proposed improvements to South Shore Drive over and above that conferred on the community in general.
Accordingly, I would affirm the trial court's judgment permanently enjoining the defendant from levying a special assessment.
NOTES
[*]  Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.


392 So.2d 13 (1980)
Robert J. KAUFFMANN, Appellant,
v.
Frank J. BAKER, Jr., and Dorothy H. Baker, Appellees.
No. 79-1137.
District Court of Appeal of Florida, Fourth District.
November 26, 1980.
Rehearing Denied January 23, 1981.
*14 Robert L. Thomas, Apopka, for appellant.
Timothy W. Gaskill, of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P.A., North Palm Beach, for appellees.
BERANEK, Judge.
Robert J. Kauffmann, plaintiff/purchaser, appeals from a final judgment denying specific performance of a contract for the purchase and sale of real property. The record contains no trial transcript as no court reporter was present at the trial. Appellant prepared and served upon appellees/sellers, Frank and Dorothy Baker's counsel, a proposed statement of the facts. Appellees' counsel refused to sign the statement saying, "The only agreement I have with your version of the facts is that you properly named the parties. Everything else is in dispute." (Emphasis in original). Appellant then set for hearing a "motion for reconstruction of record" although no such written motion was ever filed. The record does contain a transcript of that hearing which reflects the trial court made no attempt to settle any factual differences between the parties or approve any version of the facts. In fact, neither party requested the court to do so and the proposed statement of facts played no part in the hearing. Instead, the court read its trial notes to counsel and stated, "The only recollection I would have I would assume was when it was fresh in my mind as it would be when I prepared my judgement (sic), at this point no." On the basis of this record, appellant contests certain factual findings contained in the trial court's final judgment.
The trial court found that the parties purposefully inflated the purchase price ($44,500 rather than the option price of $42,100) to assist appellant in obtaining financing and that this constituted fraud upon the lending institution, rendering both parties guilty of "unclean hands." We affirm. The granting or withholding of specific performance and the application of the clean hands doctrine are questions for the lower court whose determination and discretion will not be disturbed unless clearly erroneous. Roberts v. Roberts, 84 So.2d 717, 720 (Fla. 1956); Vorpe v. Key Island, Inc., 374 So.2d 1035, 1037 (Fla. 2d DCA 1979). Since the record reflects substantial competent evidence to support the trial court's determination, appellant has failed to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979).
For the guidance of the bar, however, we deem it advisable to discuss the ramifications of Florida Rules of Appellate Procedure 9.200(b)(3), regarding construction of the record when a transcript is unavailable, and 9.200(f)(2), regarding supplementation of the record. These rules provide:
9.200(b)(3): If no report of the proceedings was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.
9.200(f)(2): If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given.
The Committee Notes to Rule 9.200(f)(2) indicate,
This rule is intended to assure that any portion of the record before the lower *15 tribunal which is material to a decision by the court will be available to the court. It is specifically intended to avoid those situations which have occurred in the past where an order has been affirmed because appellate counsel failed to bring up the portions of the record necessary to determine whether or not there was an error. See Pan American Metal Products Co. v. Healy, 138 So.2d 96 (Fla. 3d DCA 1962). The rule is not intended to cure inadequacies in the record which result from the failure of a party to properly make a record during the proceedings in the lower tribunal. The purpose of the rule is to give the parties an opportunity to have the appellate proceedings decided on the record before the lower tribunal. This rule does not impose on the lower tribunal or the court a duty to review on their own the adequacy of the preparation of the record. A failure to supplement the record after notice by the court may be held against the party at fault. (Emphasis supplied).
Appellant's purported statement of the facts failed to comply with Rule 9.200(b)(3), primarily because appellant did not file it in accordance with the rule and never submitted it to the trial court for settlement and approval. Moreover, the lack of a written pleading or motion directed to the reconstruction hearing makes us wonder precisely what appellant wanted the trial court to do.
Under Rule 9.200(f)(2), this court is required to allow an opportunity for supplementing an incomplete record before deciding the case based on the insufficiency of the record. By moving to reconstruct the record, appellant here already has had his opportunity. Furthermore, appellees noted the absence of an adequate record in their brief, choosing to rely on the facts set forth in the lower court's final judgment, which was detailed and made extensive factual findings. Appellant's reply brief urged that the record contained additional facts, citing a memorandum of law and the transcript from the reconstruction of the record "motion" hearing.
Under these circumstances, where the record deficiencies are apparent and the record itself reflects appellant's awareness of them, we find no need to award a second opportunity to supplement the record. To hold otherwise would necessitate our leading the parties by the hand in an attempt to get an adequate record. The trial court's admitted inability to independently recollect the proceedings additionally compels this determination. The trial judge is not obliged to transcend his recollection and trial notes to establish a record. Haist v. Scarp, 366 So.2d 402 (Fla. 1978).
We have considered the First District's recent opinion in Kuenstler v. Andreasen, 386 So.2d 896 (Fla. 1st DCA 1980), and find it inapplicable to this case as appellant herein has never sought this court's aid to supplement the record. To the extent Kuenstler places an affirmative duty upon the appellee to assist in preparation of the record, we choose not to follow it and instead adopt the Fifth District's rationale in Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980). The appellant retains the burden of overcoming the presumption of correctness attributed to a trial court's final judgment. Appellant's burden includes a demonstration of error from the record, which he must supply. Litigants who proceed on contested factual issues without a court reporter take a calculated risk. If the facts are determined adversely they may well be unable to demonstrate error on appeal due to the absence of a record. If opposing counsel will not stipulate and the trial court remembers the evidence differently or cannot remember it at all the resulting record may be totally insufficient.
Trial counsel should not be encouraged by Rule 9.200(f)(2), to litigate without making a proper record. Rule 9.200(b)(3), requires and allows inclusion of a "statement of evidence" only "as settled and approved" by the trial court. In the present case the only version of the facts which the trial court "approved" was that contained in the final judgment. Since there is no record support *16 for appellant's contrary factual arguments that judgment is affirmed.
AFFIRMED.
DOWNEY and GLICKSTEIN, JJ., concur.


782 F.Supp.2d 1144 (2011)
Duane WASSON et al., Plaintiffs,
v.
PYRAMID LAKE PAIUTE TRIBE et al., Defendants.
No. 3:10-cv-00123-RCJ.
United States District Court, D. Nevada.
February 25, 2011.
*1145 Duane Wasson, Nixon, NV, pro se.
Michelle J. Ruize, Wadsworth, NV, pro se.

ORDER
ROBERT C. JONES, District Judge.
Plaintiffs have sued the Pyramid Lake Paiute Tribe ("the Tribe"), several tribal officials, several employees of the U.S. Bureau of Indian Affairs ("BIA"), and a tribal consultant residing in Colorado for declaratory and injunctive relief. Pending before the Court is the Tribe's motion to dismiss and three motions to amend the Complaint. For the reasons given herein, the Court grants the motion to dismiss and denies the motions to amend.

I. FACTS AND PROCEDURAL HISTORY
In the Complaint, Plaintiffs characterize the nature of the case as follows:
The Pyramid Lake Tribal Council under past and current three Tribal Administrators violate the requirements of due process rights and equal protection under the law which are guaranteed under The Indian Civil Rights Act of 1968; The Constitution and Bylaws of the Pyramid Lake Paiute Tribe, approved in 1936; Pyramid Lake Tribal Code, Title 9, Election Code (resolution # PL91-00); Code of Federal Regulations 25 Indians. The Council continually violates Petition(s) and Election Referendum votes, by doing so the subject matter of the petitions are ignored or never addressed. For this reason we must bring forward the subject matter contained in *1146 the three petitions and due process violations.
(Compl. 5 ¶ B.l, ECF No. 4). The Complaint is 242 pages long. Count I for violation of due process rights under the Indian Civil Rights Act of 1968 ("ICRA") is listed on page six (as numbered in the ECF filing). Count 1 is immediately followed by approximately 115 pages of various evidence not independently marked as exhibits, after which the Complaint continues with Count 2 for violation of due process rights under the Constitution of the Pyramid Lake Paiute Tribe. (See id., ECF No. 4-1, at 11). This is followed by approximately 100 more pages of evidence before the Complaint resumes and concludes. (See id., ECF No. 4-2, at 36). Plaintiffs allege to have exhausted administrative, tribal court, and tribal appellate court remedies. (See id. at 37 ¶ 3).
The Court has denied a temporary restraining order ("TRO"). At the TRO hearing, the Court strongly advised Plaintiffs to retain an attorney. They have not done so, despite claiming at oral argument that they had contacted an attorney who would represent them in opposing the present motion to dismiss. What Plaintiffs have done is file a "Motion to Recognition of Attorney Representation," wherein Plaintiffs ask the Court to recognize Mr. Wes Williams as their attorney. Mr. Williams is not Plaintiffs' attorney and could not be under the ethical rules. He is an attorney for the Tribe and other Defendants. Plaintiffs cite to 25 C.F.R. § 88.1(a) for the proposition that Mr. Williams is their attorney, but that section of the regulation simply states that federally recognized tribes "may employ legal counsel." Id., Mr. Williams has appeared on behalf of the Tribe and represents it as a sovereign entity, not Plaintiffs in their individual capacities.

II. LEGAL STANDARDS
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
"Generally, a district court may not consider any material beyond the *1147 pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Fed.R.Civ.P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001).

III. ANALYSIS
Congress has plenary power over the Indian tribes, see, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216, 47 L.Ed. 299 (1903), which exist as "domestic dependent nations," Cherokee Nation v. Georgia, 30 U.S. 1, 17, 5 Pet. 1, 8 L.Ed. 25 (1831). As a starting point in American history, Indian tribes existed as sovereign nations. Id. at 59-60. However, the tribes' sovereignty has been "necessarily diminished" via conquest by other sovereigns, such as England, France, Holland, Spain, and Portugal, all of whom recognized the principal that a conquered people retained the right to occupy the land, but that certain aspects of sovereignty became forfeit. Johnson v. McIntosh, 21 U.S. 543, 574-76, 8 Wheat. 543, 5 L.Ed. 681 (1823). Congressionally recognized tribes retain all aspects of sovereignty they enjoyed as independent nations before they were conquered, with three exceptions: (1) they may not engage in foreign commerce or foreign relations, see Worcester v. Georgia, 31 U.S. 515, 559, 6 Pet. 515, 8 L.Ed. 483 (1832); (2) they may not alienate fee simple title to tribal land without the permission of Congress, see McIntosh, 21 U.S. at 574; and (3) Congress may strip a tribe of any other aspect of sovereignty at its pleasure, see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), superseded on other grounds by 25 U.S.C. § 1301(2), (4) (1990). In summary, all aspects of sovereignty consistent with the tribes' dependent status, and which have not been taken away by Congress, remain with the tribes.
Because the tribes retain their sovereignty generally, and because this sovereignty predates the Constitution and does not depend upon it, the Constitution does not bind tribal governments with respect to their members. Talton v. Mayes, 163 U.S. 376, 382-84, 16 S.Ct. 986, 41 L.Ed. 196 (1896). Plaintiffs' claims against the tribal Defendants under the United States Constitution therefore fail as a matter of law. In 1968, Congress passed the ICRA to provide certain protections for Indians as against their tribal governments. These protections roughly parallel the protections afforded by the Bill of Rights, but the only remedy available is habeas corpus, not injunctive or declaratory relief. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-62, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (holding that the ICRA stripped sovereign immunity only as to the rights enumerated therein, and only with respect to the remedy of habeas corpus, not injunctive or declaratory relief). Plaintiffs' claims against the tribal Defendants under the ICRA therefore also fail as a matter of law.
*1148 Finally, the BIA officials and the private tribal consultant may not be sued in this Court based on the facts alleged. The Complaint asks Plaintiffs to "[e]xplain how [the BIA officials and the private tribal consultant were] acting under color of law," to which Plaintiffs respond "Tribal and Federal Law" and "Under Tribal Laws approved by the Dept of the Interior," respectively. (Compl. 3-4). Insofar as these Defendants were acting on behalf of the Tribe, they are immune, and the simple fact that the BIA approved the Tribe's constitution and/or bylaws does not make the BIA itself, or its officials, amenable to suit as to the Tribe's allegedly unconstitutional actions thereunder. Under § 16 of the Indian Reorganization Act of 1934 ("IRA"), an Indian tribe may adopt a constitution and bylaws, which become effective upon ratification by a majority of adult members of the tribe and approval by the Secretary of the Interior. See 25 U.S.C. § 476(a). A federal court, however, does not have subject matter jurisdiction under either the IRA or the Administrative Procedures Act to entertain a suit against any defendant, Indian tribe or no, based on the alleged violation of tribal election procedures, which is "an internal controversy among Indians over tribal government." Motah v. United States, 402 F.2d 1, 2 (10th Cir.1968). Nor is there any exception to federal sovereign immunity from suit that would permit such a suit against BIA officials. Motah, 402 F.2d at 2 (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)).
Plaintiffs here complain of the alleged failure of the Tribe to entertain petitions or honor referenda results. These are internal affairs of the Tribe over which the Court lacks subject matter jurisdiction. See Felix. S. Cohen, Federal Handbook of Indian Law 126 (1971) ("Such power [of sovereignty] includes the right to define the powers and duties of [tribal] officials, the manner of their appointment or election, the manner of their removal, the rules they are to observe in their capacity as officials, and the forms and procedures which are to attest to the authoritative character of acts done in the name of the tribe."). A tribe may not be sued except where Congress has specifically stripped its sovereign immunity by providing for suit. See id. at 283-84 (quoting Thebo v. Choctaw Tribe of Indians, 66 F. 372, 373-76 (8th Cir.1895)); see also Turner v. United States, 248 U.S. 354, 358, 39 S.Ct. 109, 63 L.Ed. 291 (1919) ("Without authorization from Congress, the Nation could not then have been sued in any court; at least without its consent."). Plaintiffs identify no statute permitting suit here except for the ICRA, the sole remedy under which is habeas corpus. Nor do Plaintiffs identify any waiver of sovereign immunity in the Tribal Constitution, which they attach to the Complaint. (See Constitution and Bylaws of the Pyramid Lake Paiute Tribe, Jan. 15, 1936, ECF No. 1-1, at 14). Neither the Tribal Constitution nor the Amendments thereto appear to waive sovereign immunity from suit. See id. In fact, the Election Code, which is also attached to the Complaint, indicates an intention not to waive immunity from suit as to election disputes. (See Pyramid Lake Tribal Code § 9.03.110, ECF No. 1-1, at 43 ("Appeals shall be heard by the Pyramid Lake Tribal Council at the next Regular or Special Tribal Council meeting and the decision of the Council shall be final.")).
The Court identified most of the above obstacles to jurisdiction in the order denying the TRO motion. Defendants now add that because the Tribe is immune and therefore cannot be joined involuntarily, and because the Tribe is a necessary, indispensable party under Rule 19, the entire case must be dismissed under Rule *1149 12(b)(7). Defendants are correct. See Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1022-25 (9th Cir.2002). A tribe's interest in sovereign immunity so greatly outweighs a plaintiffs interest in litigating his claims that there is "very little room for balancing of other factors" under Rule 19(b) in such cases. Id. at 1025.
Plaintiffs also complain that the Tribe is not adequately protecting their interests in water rights. At the TRO hearing, the Court asked whether there were any federal statute or regulation requiring, for example, per capita distributions of proceeds from the sale or lease of tribal water rights, positing that the Court might have jurisdiction to enforce a claim under such a law, but Plaintiffs identified no such law or regulation in their opposition or at oral argument. At oral argument, Plaintiffs complained that the Tribe operated as a dictatorship and that the Tribal Court was not independent from the Tribal Counsel. These may be serious political concerns, but an allegation does not create jurisdiction by its gravity where the nature of the allegation precludes it. If Plaintiffs wish to strip the Tribe of its immunity so that they may sue it, they must pursue that course of action politically with the Tribe itself or with Congress.
Finally, Plaintiffs move to amend, but amendment in the way Plaintiffs request is futile. They request the addition of criminal charges, which they may not privately prosecute, and to add Plaintiffs.

CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 22) is GRANTED.
IT IS FURTHER ORDERED that the Motions to Amend (ECF Nos. 14, 16, 24) are DENIED.
IT IS FURTHER ORDERED that all other pending motions are DENIED as moot.
IT IS SO ORDERED.