                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2717
                         ___________________________

                             Fresenius Kabi USA, LLC

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

State of Nebraska; Nebraska Department of Correctional Services; Scott Frakes, in
his Official Capacity as Director of the Nebraska Department of Correctional Services

                       lllllllllllllllllllllDefendants - Appellees
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Lincoln
                                  ____________

                            Submitted: August 13, 2018
                              Filed: August 13, 2018
                                  [Unpublished]
                                  ____________

Before WOLLMAN, GRUENDER, and STRAS, Circuit Judges.
                       ____________

PER CURIAM.

      Fresenius Kabi USA, LLC (“Fresenius Kabi”) appeals the district court’s1 order
denying its motion for a temporary restraining order. It moves to expedite its appeal,


      The Honorable Richard G. Kopf, United States District Judge for the District
      1


of Nebraska.
see Fed. R. App. P. 2; 28 U.S.C. § 1657; & United States Court of Appeals for the
Eighth Circuit, Internal Operating Procedures III.D., and it further moves for an
injunction pending appeal, see Fed. R. App. P. 8(a).

       Pursuant to an execution warrant issued by the Nebraska Supreme Court, the
Nebraska Department of Correctional Services plans to execute Carey Dean Moore
by lethal injection on August 14, 2018. Scott Frakes, the Director of the Nebraska
Department of Correctional Services, disclosed that the drugs used in the execution
include cisatracurium besylate and potassium chloride. On August 7, 2018, Fresenius
Kabi brought suit alleging that the Department of Correctional Services improperly
obtained these drugs from Fresenius Kabi’s distributors. It sought injunctive and
declaratory relief, as well as a temporary restraining order and preliminary injunction
prohibiting Nebraska from using the drugs in connection with the planned execution.
After conducting a hearing, the district court issued an order denying the motion for
a temporary restraining order. Fresenius Kabi has filed an interlocutory appeal
objecting to the denial of its motion for preliminary relief.

       Nebraska has filed a motion to dismiss this appeal for lack of jurisdiction, and
we must first ascertain whether we in fact do have jurisdiction. While 28 U.S.C.
§ 1292(a)(1) allows interlocutory appellate review of a preliminary injunction,
ordinarily our jurisdiction does not extend to a temporary restraining order. In re
Champion, 895 F.2d 490, 492 (8th Cir. 1990). But we have recognized jurisdiction
where the temporary restraining order “is in substance a preliminary injunction.”
Edudata Corp. v. Sci. Computs., Inc., 746 F.2d 429, 430 (8th Cir. 1984) (per curiam).
Here, Fresenius Kabi sought both a temporary restraining order and a preliminary
injunction. The district court order addressed only the temporary restraining order.
Nonetheless, as the Supreme Court has explained in a similar context, “[T]he District
Court did not call its orders ‘injunctions’—in fact, it disclaimed the term—but the
label attached to an order is not dispositive.” Abbott v. Perez, 138 S. Ct. 2305, 2319
(2018) (citation omitted). The Court emphasized that “where an order has the
‘practical effect’ of granting or denying an injunction, it should be treated as such for

                                          -2-
purposes of appellate jurisdiction.” Id. Because that is the case here, we deny
Nebraska’s motion to dismiss the appeal.

       We review the denial of a motion for a preliminary injunction for an abuse of
discretion. Jones v. Kelley, 854 F.3d 1009, 1013 (8th Cir. 2017) (per curiam). “An
abuse of discretion occurs where the district court rests its conclusion on clearly
erroneous factual findings or erroneous legal conclusions.” Powell v. Noble, 798
F.3d 690, 697 (8th Cir. 2015). To determine whether to issue a preliminary
injunction, the district court considers “(1) the threat of irreparable harm to the
movant; (2) the state of balance between this harm and the injury that granting the
injunction will inflict on other parties litigant; (3) the probability that movant will
succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys.,
Inc., 640 F.2d 109, 113-14 (8th Cir. 1981) (en banc). Here, the district court
considered each of these factors. Finding that they all cut against Fresenius Kabi, it
denied the motion for a temporary restraining order.

       Fresenius Kabi nevertheless argues that the district court gave significant
weight to improper and irrelevant factors, failed to consider its likelihood of success
on the merits, and improperly pitted its private interests against the democratic
process. It claims that the district court misconstrued its concern for its business
interests as “a calculated, abolitionist ploy to challenge the democratic will of
Nebraskans.” While we recognize that Fresenius Kabi takes no stand on capital
punishment, we find nothing inappropriate in the district court’s recognition that a
preliminary injunction would frustrate Nebraska’s plans to execute Mr. Moore.
Indeed, Dataphase specifically requires the district court to consider the public
interest. Nor does the district court’s analysis of Fresenius Kabi’s likelihood of
success warrant reversal. As Fresenius Kabi rightly notes, the short timetable
required the district court to issue an opinion under considerable time pressure, and
both parties agreed that live witness testimony was not necessary. See Univ. of Texas
v. Camenisch, 451 U.S. 390, 395 (1981) (noting that the limited purpose of and haste
surrounding a preliminary injunction allow “evidence that is less complete than in a

                                         -3-
trial on the merits”). In light of the nature of this action, it was not an abuse of
discretion for the district court to treat the likelihood-of-success factor less
exhaustively than Fresenius Kabi would have preferred, especially when the three
other Dataphase factors clearly weighed in favor of the state. Indeed, the district
court reasonably concluded that Fresenius Kabi was not likely to suffer irreparable
injury because the injury it alleged was too speculative to support a preliminary
injunction. This alone is sufficient to support its denial of the preliminary injunction.
Chlorine Inst., Inc. v. Soo Line R.R., 792 F.3d 903, 915 (8th Cir. 2015) (“[T]he
absence of irreparable injury is by itself sufficient to defeat a motion for a preliminary
injunction.”).

      Consequently, we grant Fresenius Kabi’s motion for an expedited appeal, we
affirm the district court order denying a preliminary injunction, and we deny as moot
Fresenius Kabi’s motion for a preliminary injunction pending appeal.
                         ______________________________




                                           -4-
