NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 10

- 2324

_______________ BEATRICE MARINO, Appellant

v. JENNIFER VELEZ, Commissioner, New Jersey Department of Human Services; JOHN R. GUHL, Director, New Jersey Department of Human Services, Division of Medical Assistance and Health Services

_______________ On Appeal from the United States District Court F or the District of New Jersey (D.C. Civi l Action No. 3

- 1 0

- c v - 00 911 ) District Judge: Honorable Joel A. Pisano

_______________ Submitted Under Third Circuit LAR 34.1(a) January 1 0 , 2011

_______________ Before: RENDELL, AMBRO , and FISHER , Circuit Judges (Opinion filed : January 10, 2011 )

_______________ OPINION

________ _______ AMBRO, Circuit Judge The case involves a dispute over the date of imposition of a penalty period for Medicaid benefits. Specifically, Beatrice Marino argues that the Commissioner of the2 New Jersey Department of Human Services and the Director of that State’s Division of Medical and Assistance and Health Services (the “Commissioner ” and the “ Director , ” respectively ) erred in calculating her assets for the purpose of d etermining her penalty period. We disagree, and thus affirm.
I. Marino has res ided at Care One at King James nursing facility, located in Navesink, New Jersey, since April 2007. In February 2009, she applied for Medicaid benefits. Prior to applying, between November 2006 and January 2008, Marino made gifts to various family member s totaling $192,000. As a result, a penalty period of 26 months and 21 days was imposed, during which time Marino, although otherwise eligible, could not receive benefits. See 42 U.S.C. § 1396p(c)(1) (imposing a penalty period when an applicant transfers assets for less than fair market value during the five years prior to the date of application). Subsequently, Marino’s family members returned $89,000 to her. As result, the penalty period was reduced to 14 months and 6 days to reflect the net gifted am ount of $103,000. The penalty period began to run on April 1, 2010, the date on which Marino was determined to be Medicaid eligible (but for the penalty period), having spent down her returned gifts and other assets. On March 4, 2010, Marino filed a moti on for preliminary injunction, asserting that the Commi ssioner and the Director had improperly “tolled” her penalty period. The District Court denied the motion, ruling that Marino had failed to show a likelihood of success on the merits of her claim. Sh e appeals.3 II. The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 . We have jurisdiction under 28 U.S.C. § 129 2(a)(1) (interlocutory appeals as of right involving the denial of a motion for a preliminary injunction). “In reviewing [ a ] district court’s order denyi ng [a] motion for a preliminary injunction, ‘ [ w ] e review [its] conclusions of law in plenary fashion, its findings of fact under a clearly erroneous standard, and its decision to grant or deny the injunction for an abuse of di scretion.’” New Jersey Hosp. Ass’n v. Waldman , 73 F.3d 509, 512 (3d Cir. 1995) (quoting AT&T v. Winback & Conserve Program, Inc. , 42 F.3d 1421, 1427 (3d Cir. 1994)). An injunction is an “extraordinary remedy” that should be granted only in “limited
circ umstances.” AT&T , 42 F.3d at 1426

- 27 (internal quotations omitted). “In ruling on a motion for a preliminary injunction, the court must consider: ‘(1) the likelihood that the plaintiff will prevail on the merits at the final hearing; (2) the extent to wh ich the plaintiff is being irreparably harmed by the conduct complained of; (3) the extent to which the defendant will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest.’” Id. at 1427 (quoting Opticians Ass’n v. Indep. Opticians , 920 F.2d 187, 191

- 92 (3d Cir. 1990)).
III. On appeal, Marino argues that her penalty period was improperly “tolled” from March through June 2009, the time after which the initial penalty period was imposed but during which she received the $89,000 returned to her by family members . She asserts4 that, because sh e was resource - eligible for Medicaid during those months, her penalty period should have begun in March 2009, ended in June 2009, and begun again in April
2010 , when she once more became resource

- eligible after spending down her assets

. We are not persuaded . As the District Court pointed out, in March through June 2009, Marino received return amounts totaling $89,000, well in excess of the qualifying
resource limit for Medicai d. She then asked the Commissioner and the Director to recalculate her penalty based on the returned gifts, and thereby treat them as though they had remained her property. Marino cannot now claim that she should get credit toward her recalculated penalt y period for those months, even though sh e remained technically

resource - eligible for Medicaid because she did not receive the returned funds until the end of June 2009. 1 Because we believe that the District Court did not abuse its discretion in holding that Marino had failed to show a likelihood of success on the merits, we need not reach her argument that she has shown a likelihood of prevailing on the remaining elements required for a preliminary injunction to issue.
* * * * * For these rea sons, we affirm the judgment of the District Court.

1 In addition, there is some doubt as to whether Marino was act ually resource

- eligible from March to June 2009. In their brief, the Commissioner and the Director allege that, from 2008 to December 2009 , the nursing facility was holding $7,285 in a bank account separate from Marino’s checking account that contained all of her other assets to be applied to her care as needed. The Commissioner and the Director plan to verify this during discovery. If the ir allegation is correct, Marino wa s not even technically resource

eligible for Medicaid benefits during the disputed time period. See N.J. Admin. Code § 10:70

- 4.8 (stating that the qualifying resource limit for individuals is $4,000).