United States Court of Appeals,

Fifth Circuit.

No. 92-1438.

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Empire Savings and

Loan Association, Plaintiff-Appellee,

v.

D.L. FAULKNER, et al., Defendants,

Nancy Jane Toler, Larkin Toler, and Tobin Toler, Defendants-Appellants,

Sarah Ruth Toler, Appellant.

May 25, 1993.

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

Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The Federal Depo sit Insurance Corporation ("FDIC") moved for a preliminary injunction

against Sarah Toler and the Toler children ("the Tolers"), pursuant to the asset-freeze provisions of

the Comprehensive Thrift and Bank Fraud Prosecution and Taxpayer Recovery Act of 1990 ("TRA"),

12 U.S.C.A. § 1821(d)(18 )-(19) (West Supp.1993). The Tolers appeal the district court's order

granting the injunction. Finding no error, we affirm.

I

This appeal arises out of the failure of the Empire Savings & Loan Association ("Empire"),

a fed erally-insured savings and loan. The Federal Savings and Loan Insurance Corporation

("FSLIC") was appointed as Empire's receiver ("FSLIC/Receiver") for purposes of liquidation.

In 1985, FSLIC/Receiver brought suit against James Toler, D.L. Faulkner, and various other

defendants, alleging that they had defrauded Empire through fraudu lent real estate speculation

schemes. Toler was a real estate promoter engaged in the purchase and sale of real estate and the

development of condominium projects in the Dallas-Fort Worth area. The complaint alleged that

Toler and Faulkner had engaged in a scheme to obtain loans for themselves, and for investors who

would purchase property from them, through the use of false information and the bribery of Empire's1 In June 1988, the district court stayed proceedings in FSLIC/Receiver's civil suit because of

the pendency of the criminal action against Toler.

2 Following the passage of the Financial Institutions Reform, Recovery and Enforcement Act of

1989 ("FIRREA"), the FSLIC was abolished and the FDIC, in its capacity as receiver, was

subsequently substituted for FSLIC as the plaintiff in FSLIC/Receiver's civil suit for damages.

3 To prevent the dissipation of assets fraudulently obtained from federally insured financial

institutions, the TRA, inter alia, altered the showing the FDIC must make to obtain a preliminary

injunction. Congress stated that

Rule 65 of Federal Rules of Civil Procedure shall apply with respect to any

proceeding under paragraph (18) [authorizing courts to issue an asset freeze upon

the FDIC's request] without regard to the requirement of such rule that the

applicant show that the injury, loss, or damage is irreparable and immediate.

12 U.S.C.A. § 1821(d)(19) (West Supp.1993).

4 As early as 1983, James Toler had begun to transfer assets obtained from Empire to his wife

and children. See Record on Appeal, vol. 4, at 76. president, Spencer Blain. Many of these loans remain unpaid, and have caused huge losses to Empire.

FSLIC/Receiver sought compensatory damages of at least $142 millio n, based upon Toler's alleged

fraudulent conduct and racketeering activities.

In 1987, an 88-count indictment was filed against Toler, Faulkner, and others, alleging, inter

alia, violations of the RICO statute and conspiracy to d efraud five savings and loan institutions,

including Empire. 1 In late 1991, the jury convicted Toler on most counts, including the RICO and

conspiracy counts of the indictment. In January 1992, Toler was sentenced to twenty months

imprisonment, and was also ordered to forfeit $38 millio n to the United States. Toler's sentence and

forfeiture have been stayed pending an appeal.

Two months after Toler's sentencing, FDIC/Receiver 2 sought a preliminary injunction which

would limit the Tolers' abilit y to transfer their assets, pending resolution of the civil action, pursuant

to the asset-freeze provisions of the recently-enacted TRA. 3 In support of its motion, FDIC/Receiver

argued that the dissipation of those assets which James Toler had transferred to his wife and children, 4

would leave it with no source of recovery from which to satisfy any judgment entered against James

Toler. After conducting an evidentiary hearing, the district court granted FDIC/Receiver's motion

for a preliminary injunction. S ee Record on Appeal, vol. 2, at 246 (citing 12 U.S.C.A. § 1821(d)(18)-(19)). The court also granted limited discovery for the purpose of determining which of the Tolers'

assets were acquired with funds fraudulently obtained from Empire.

On appeal, the Tolers argue that th e district court erred in: (a) granting a preliminary

injunction to protect a potential damages award; (b) applying retroactively the preliminary injunction

provisions of the TRA to a pending lawsuit; and (c) freezing all of their assets, rather than just those

obtained from James Toler's alleged fraudulent conduct.

II

A

The Tolers first argue that the district court erred in ordering an injunction to protect legal,

rather than equitable relief. S ee Brief for Tolers at 22 (citing FSLIC v. Dixon, 835 F.2d 554, 560 (5th

Cir.1987) ("As a general rule, such an injunction is not permissible t o secure post-judgment legal

relief in the form of damages. Such an injunction to secure future payment of possible money

damages would be in the nature of a "prejudgment attachment' subject t o Federal Rule of Civil

Procedure 64 and through that rule to the strictures of state law."). We review this issue de novo,

as it turns on an interpretation of law. S ee In re Fredeman, 843 F.2d 821, 824 (5th Cir.1988)

(" Co nclusio ns of law underlying the court's decision [to issue an injunction], ... are subject to

independent review.").

The general rule limit

ing injunctions to those cases where a n equit able, rather than legal

remedy is sought to be protected, necessarily follows from the traditional equitable requirement that

an applicant for an injunction show irreparable injury. Because the availability of a legal remedy often

indicates t hat an applicant's injury is not irreparable, courts generally do not issue injunctions to

protect le gal remedi es. S ee Dixon, 835 F.2d at 560 n. 1 (holding that an injunction to secure

post-judgment legal relief would be proper where the applicant demonstrated irreparable injury); c f.

De Beers Consolidated Mines v. United States, 325 U.S. 212, 222-23, 65 S.Ct. 1130, 1135, 89 L.Ed.

1566 (1945) ("No relief of this character [an injunction to secure post-judgment legal relief] has been

thought justified in the long hist ory of e quity jurisprudence." (emphasis added)). Since the

preliminary injunction provisions of the TRA remove the equitable requirement of irreparable injury,we see no reason to apply to those provisions the corresponding equitable principle that an injunction

may not issue to protect a legal remedy. S ee Fredeman, 843 F.2d at 828 ("Congress, of course, has

the power to authorize pre liminary injunctions even though they would be unavailable under

traditional equitable principles.").

We find further support in the express language of the preliminary injunction provisions of

t he TRA, which does not make a distinction between the kind of relief sought for the purpose o f

issuing an asset freeze. See 12 U.S.C.A. § 1821(d)(18)-(19); s ee also Goodyear Atomic Corp. v.

M iller, 486 U.S. 174, 184-85, 108 S.Ct. 1704, 1712, 100 L.Ed.2d 158 (1988) ("We generally

presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.").

In addition, the TRA's legislative history speaks broadly of giving the FDIC the authority to request

an asset freeze for the purpose of protecting the taxpayers' money, without regard t o whether the

FDIC seeks to protect a legal, rather than equitable remedy. S ee 136 Cong.Rec. E3686 (daily ed.

Nov. 2, 1990) (statement of Rep. Schumer) ("Congress is granting such relief from the more ri gorous

requirements of Rule 65 because the Federal Deposit Insurance Corporati on and the Resolution Trust

Co rpo ration are in the position of protecting the depository insurance fund, i.e., the taxpayers'

money."). Accordingly, we find no error in the district court's application of the preliminary

injunction provisions of the TRA for the purpose of securing a potential damage award.

B

The Tolers next argue that the district court erred in applying the p reliminary injunction

provisions of the TRA to a pending lawsuit filed five years before the TRA's effective date. S ee Brief

for Tolers at 26-28. Citing B owen v. Georgetown Univ. Hospital, 488 U.S. 204, 109 S.Ct. 468, 102

L.Ed.2d 493 (1988), the Tolers argue that the preliminary injunction provisions of the TRA cannot

be applied retroactively because of the absence of unequivocal C o ngressional intent to that effect.

See id. at 208, 109 S.Ct. at 471 (holding that "congressional enactments

... will not be construed to

have retroactive effect unless their language requires this result"). FDIC/Receiver contends that we

should apply the apparently conflicting rule set down in Bradley v. School Board of Richmond, 416

U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), where the Supreme Court stated that "a court i s5 Justice Scalia further distinguished between "normal" retroactivity and "secondary"

retroactivity, see Georgetow n, 488 U.S. at 219, 109 S.Ct. at 477 (Scalia, J., concurring), but this

distinction is not relevant to our facts. to apply the law in effect at the time it renders its decision, unless doing so would result in manifest

injustice or there is statutory direction or legislative history to the contrary." I d. at 711, 94 S.Ct. at

2016. We review this legal issue de novo. See Fredeman, 843 F.2d at 824.

Because the instant case does not involve a retroactive applicati o n o f the preliminary

injunction provisions of the TRA, we need not reconcile the Supreme Court's decisions in Bradley

and Georgetow n. To determine whether a statute's application in a particular situation is prospective

or retroactive, we focus on the conduct which is implicated by the application of the statute. "[A]

statute's application is usually deemed prospective when it implicates conduct occurring on or after

the [statute's] effecti ve date." M cAndrews v. Fleet Bank of Massachusetts, 989 F.2d 13, 16 (1st

Cir.1993) (citing EPA v . New Orleans Pub. Serv., Inc., 826 F.2d 361, 365 (5th Cir.1987)).

Conversely, a statute's application is considered retroactive when it alters the legal consequences of

conduct occurring before the statute's effective date. G eorgetow n, 488 U.S. at 219, 109 S.Ct. at 477

(Scalia, J., concurring) 5 ; s ee Black's Law Dictionary 1317 (6th ed. 1990) (defining retroactive laws

as those laws which take away or impair vested rights ac quired under existing laws, create new

obligations, or impose a new duty regarding transactions or considerations already past); s ee, e.g.,

Georgetow n, 488 U.S. at 207, 109 S.Ct. at 471 (involving the promulgation of cost-limit rules which

would allow the government to recoup sums previously paid); Bradley, 416 U.S. at 710, 94 S.Ct.

at 2015 (involving the application of a change in law regarding attorney's fees to services rendered

prior to the statute's enactment). Here, the application of the preliminary injunction provisions of the

TRA implicates future conduct, in the sense that the asset freeze applies only to future transfers of

the Tolers' assets. S ee Record on Appeal, vol. 2, at 250 ("It is further ORDERED that [the Tolers]

... are hereby restrained and enjoined from, directly or indirectly, selling, assigning, dissipating,

... any

of their property

... without the prior approval of the court or an authorized representative of the

FDIC...."). Because the district court's injunction does not invalidate, limit, o r otherwise apply to

transfers of assets occurring before the TRA's effective date, see id., the injunction does not alter the6 The Tolers do argue that despite the clear language of § 1821(d)(18)-(19), FDIC/Receiver

still had to show "some potential injury" prior to obtaining an asset freeze under the TRA. See

Brief for Tolers at 28-30 (citing 136 Cong.Rec. E3686 (daily ed. Nov. 2, 1990) (statement of consequences of past conduct. Moreover, applying the injunction provisions of the TRA does not

take away or impair vested rights existing prior to the T RA's effective date, as those provisions

merely relax the procedural showing the FDIC must make to obtain an asset freeze. S ee 12 U.S.C.A.

§ 1821(d)(18)-(19).

The Tolers maintain that t he co urt's injunction relies upon a retroactive application of the

TRA because the FDIC's motion for an injunct io n is based on James Toler's alleged fraud and

subsequent transfers of assets to his family, conduct which occurred before the TRA's effective date.

We disagree. "A statute does not operate retroactively simply because its application requires some

reference to antecedent facts." M cAndrews, 489 F.2d at 16 (citing Cox v. Hart, 260 U.S. 427, 435,

43 S.Ct. 154, 157, 67 L.Ed. 332 (1922)). "Even when t he later-occurring circumstance depends

upon the existence of a prior fact, that interdependenc e, wit hout more, will not transform an

otherwise prospective application into a retroactive one." I d. (citing New York Cent. & Hudson River

R.R. Co. v. United States (No. 2), 212 U.S. 500, 505-06, 29 S.Ct. 309, 311, 53 L.Ed. 624 (1908)

(holding that a s t at ut e prohibiting rebates could validly be applied to a rebate paid after the act's

effective date with respect to property transported before the act's effective date)). Consequently,

the district court's injunction—issued after the TRA's effective date and which limit s only future

transfers of assets—involved a prospective, rather than retroactive, application of the TRA,

notwithstanding the fact that conduct supporting the issuance of the injunction occurred before the

TRA's effective date. S ee Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 849-50,

110 S.Ct. 1570, 1583, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring) (stating that "cases

... involved

prospective rather than retroactive application, because they sought injunctive relief ").

C

Lastly, the Tolers argue that even if the preliminary injunction provisions of the TRA apply,

the district court erred in applying those provisions. The record shows, and the Tolers generally do

not dispute, 6 that the FDIC established—as to James Toler—the requirements for an injunction underRep. Schumer) ("Congress still intends that the Corporation be required to make some showing of

injury prior to obtaining relief.")). FDIC/Receiver met this requirement by establishing that absent

an asset freeze, there likely would be few if any assets remaining to satisfy a money judgment.

See RTC v. Cruce, 972 F.2d 1195, 2000 (10th Cir.1992) (holding that difficulty in collecting a

damages judgment may satisfy "potential injury" requirement). Contrary to the Tolers'

suggestion, the potential injury in this case was not merely a "speculative possibilit[y]," as

testimony in the record shows that James Toler transferred assets and income to his wife and

children with the intention of placing them beyond the reach of potential creditors. See Record on

Appeal, vol. 4, at 80-88. Therefore, FDIC/Receiver met all the statutory requirements for

obtaining a preliminary injunction as to James Toler.

7 The Toler children—Nancy Jane, Larkin, and Tobin Toler—were parties to the underlying

civil suit, see Record on Appeal, vol. 1, at 2-3, and were therefore within the district court's

jurisdiction. See Fed.R.Civ.P. 65(d) ("Every order granting an injunction ... is binding ... upon the

parties to the action....").

8 Sarah Toler does not dispute that she had actual notice of the injunction order, as she testified

at the preliminary injunction hearing before the district court. 12 U.S.C.A. § 1821(d)(18)-(19). The Tolers do argue that: (1) the district court lacked the

jurisdiction to freeze Sarah Toler's assets since she was not a party to the underlying civil action; 7

and (2) the court's injunction is exceedingly broad. See Brief for Tolers at 28-44. We review these

legal issues de novo. S ee Waffenschmidt v. MacKay, 763 F.2d 711, 717-18 (5th Ci r.1985)

(reviewing jurisdiction issue de novo), cert. denied, 474 U.S. 1056, 106 S.Ct. 794, 88 L.Ed.2d 771

(1986); Dixon, 835 F.2d at 563-66 (reviewing scope of injunction issue de novo).

Under Fed.R.Civ.P. 65(d), "[e]very order granting an injunction and every restraining order

... is binding only upon the parties to the actio n, ... and upon those persons in active concert or

participation with them who receive actual notice of the order by personal service or otherwise." S ee

also Waffenschmidt, 763 F.2d at 717 ("An injunction binds not only the parties subject thereto, but

also nonparties who act with the enjoined party."). The district court found that Sarah Toler actively

participated with James Toler in transferring assets fraudulently obtained from Empire. 8 S ee Record

on Appeal, vol. 2, at 245, 250. We will not disturb this factual finding absent clear error. S ee

Waffenschmidt, 763 F.2d at 723. Because the record supports this finding, see Record on Appeal,

vol. 4, at 80-88, the district court did not err in exercising jurisdiction over Sarah Toler.

The Tolers also argue that the scope of the injunction is exceedingly broad, since it includes

those assets not obtained through James Toler's alleged fraudulent activities. In Dixon, we upheld9 Because the Tolers have not demonstrated which assets are traceable to James Toler's alleged

fraud, they cannot prove an independent interest in their assets. Thus, we find misplaced their

reliance upon Parker v. Ryan, 960 F.2d 543 (5th Cir.1992). See id. at 546 (citing Waffenschmidt,

763 F.2d at 718, for the proposition "that if a nonparty asserts an independent interest in the

subject property and is not merely acting on behalf of the defendant, then Rule 65(d) does not

authorize jurisdiction over the party"). an injunction which froze all the assets of the parties bound by the injunction where the parties failed

to cooperate in demonstrating which of their assets were not acquired legitimately. S ee id., 835 F.2d

at 566 ("Since, however, the defendants did not cooperate by demonstrating their net worths, since

they offered little evidence to rebut the overwhelming case against them, and since a vital public

interest was at stake, the district court was correct to assume that all the defendants' assets were

subject to res t it ut ion."). Here, the Tolers refused to aid the district court in determining which of

their assets were traceable to James Toler's alleged fraud. The district court concluded that "[i]t is

unclear from the record what property now owned by the Toler Defendants was acquired with funds

derived from Toler's alleged illegal activity." Record on Appeal, vol. 2, at 247. We therefore hold

that the district court did not err in freezing all of the Tolers' assets, pending a determination through

limit ed discovery of

which assets are traceable to James Toler's alleged fraudulent activities. 9 S ee

Record on Appeal, vol. 2, at 248 (order of district court) ("The entry o f a preliminary injunction

would maintain the status quo pending final determination of FDIC's claims and pending resolution

of which property now owned by the Toler Defendants was acquired with funds fraudulently obtained

from Empire.").

III

For the foregoing reasons, we AFFIRM.