Submitted: April 6, 2017
from United States District Court for the Western District of
Missouri - Jefferson City
GRUENDER, MURPHY, and KELLY, Circuit Judges.
Parenthood of Kansas and Mid-Missouri (PPKM) sought and
obtained a permanent injunction against the Missouri
Department of Health and Senior Services (DHSS) after DHSS
attempted to revoke PPKM's license to provide abortion
services. DHSS appeals the district court's subsequent award
of attorney's fees to PPKM. Having jurisdiction pursuant
to 28 U.S.C. § 1291, we affirm.
operates a healthcare facility in Columbia, Missouri, that
previously provided women with abortion services. In
Missouri, facilities that provide abortion services are a
subset of ambulatory surgical centers (ASCs), and are
regulated by DHSS. See Mo. Code Regs. Ann. tit. 19,
§§ 30-30.050 to 30-30.070. For a facility to
receive an ASC license to provide abortion services, a
physician providing the services at the facility must
"have staff privileges at a hospital within fifteen (15)
minutes' travel time from the facility."
Id. § 30-30.060(1)(C)(4).
issued PPKM an ASC license on July 15, 2015, while PPKM
employed a physician with hospital privileges at the
University of Missouri hospital. The license was valid
through June 30, 2016. However, PPKM's physician lost her
hospital privileges in September 2015 when the University of
Missouri hospital ceased issuing and honoring the type of
privileges she held. As a result, PPKM lacked one of the ASC
license requirements at its Columbia facility, and informed
DHSS that it had stopped providing abortion services at that
notified PPKM by letter on September 25, 2015, that its ASC
license for the Columbia facility would be revoked effective
December 1, 2015, unless PPKM satisfied the hospital
privileges requirement. PPKM informed DHSS that it was
working to re-establish hospital privileges. On November 25,
2015, DHSS again notified PPKM of its intent to revoke the
Columbia facility's ASC license on December 1, 2015.
November 30, 2015, PPKM filed a complaint in federal district
court in Missouri pursuant to 28 U.S.C. § 1983 against
DHSS' acting director, Peter Lyskowski,  in his official
capacity, alleging that DHSS' imminent revocation of the
Columbia facility's ASC license violated PPKM's
Fourteenth Amendment rights to procedural due process and
equal protection, and seeking declaratory and injunctive
relief. PPKM simultaneously filed a motion for a temporary
restraining order (TRO), asking the court for the opportunity
to present expedited briefing on its request for a
preliminary injunction. The district court granted PPKM's
motion for a TRO, effective through December 2, 2015.
December 2, 2015, after additional briefing and a telephone
conference, the district court found that PPKM's equal
protection claim had a substantial likelihood of success,
entered a second TRO, effective through December 30, 2015.
Then, on December 28, 2015, after limited discovery, further
briefing, and a hearing, the district court granted
PPKM's request for a preliminary injunction. DHSS
appealed the preliminary injunction order, but on May 11,
2016, while that appeal was pending, the district court
granted PPKM's motion for a permanent injunction,
DHSS' appeal of the preliminary injunction was dismissed
as moot. See Planned Parenthood of Kan. & Mid-Mo. v.
Lyskowski, No. 16-1302 (8th Cir. May 12, 2016)
(dismissing appeal of preliminary injunction order pursuant
to Fed. R. App. P. 42(b)).
ASC license expired on June 30, 2016. On August 1, 2016, the
district court granted PPKM's motion for attorney's
fees pursuant to 42 U.S.C. § 1988. DHSS then appealed
the permanent injunction and attorney's fees award. PPKM
moved to dismiss DHSS' appeal of the district court's
merits decision as moot in light of the fact that PPKM's
license had expired. DHSS did not resist the motion, and we
limited DHSS' appeal to its challenge to the
attorney's fees award.
argues that the district court erred in awarding
attorney's fees because PPKM was not entitled to a TRO or
a preliminary injunction, and because PPKM achieved only a
technical victory that resulted in no real benefit to PPKM.