NOT PRECEDENTIAL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

For the District of New Jersey

(D.C. Civil Action No. 3-10-cv-00911)

District Judge: Honorable Joel A. Pisano

_______________

Submitted Under Third Circuit LAR 34.1(a)

January 10, 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 the 
2

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 determining her penalty 

period. We disagree, and thus affirm. 

I.

Marino has resided 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 members 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 amount 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 motion for preliminary injunction, asserting that 

the Commissioner 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. She appeals.
3

II.

The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. We 

have jurisdiction under 28 U.S.C. § 1292(a)(1) (interlocutory appeals as of right 

involving the denial of a motion for a preliminary injunction).

“In reviewing [a] district court’s order denying [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 discretion.’” 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 

circumstances.” 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 which 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 asserts 
4

that, because she 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 Medicaid. 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 penalty period for those months, even though she 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 reasons, we affirm the judgment of the District Court. 

 1 In addition, there is some doubt as to whether Marino was actually 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 their allegation is correct, Marino was not even technically resourceeligible 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).