                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                             F I L E D
                    UNITED STATES COURT OF APPEALS           March 23, 2004
                         For the Fifth Circuit
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 03-60379

               In re: DOUBLE J. OPERATING COMPANY, INC.

                                             Debtor


         DOUBLE J OPERATING COMPANY, INC.; JOHN B. ECHOLS

                                             Plaintiffs-Appellants,


                                  v.


 MARY MAUDE BIRMINGHAM NICHOLS, Executrix of the Estate of Robert
 B. Nichols, Jr.; MARY ASHLEY NICHOLS, Executrix of the Estate of
Robert B. Nichols, Jr.; FIDELITY AND DEPOSIT COMPANY OF MARYLAND

                                              Defendants-Appellees.


          Appeal from the United States District Court
   For the Southern District of Mississippi, Jackson Division

                            (99-CV-181-BR)




Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     This is an appeal following our remand to district court for

consideration of whether the applicable limitations period had

     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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expired, and, in the alternative, whether equitable tolling applied

to   the   facts    of    this   case.1       On   remand,   the   district   court

determined that the limitations period for Double J’s 11 U.S.C.

§322(d)claim had in fact expired and that equitable tolling did not

operate to save the claim.          After reviewing the record, we affirm

on both counts.

      Whether the limitations period has expired in this case is

a legal issue.2          Accordingly, our review of the district court’s

determination is de novo.3         But, the district court’s decision that

equitable tolling is inapplicable to the facts of this case is

subject to a highly deferential abuse of discretion review.4

      The parties agree that claims brought under 11 U.S.C. § 322(d)

are subject to a two-year limitations period that begins to run the

day that a trustee is discharged by the bankruptcy court.                      The

record shows that the trustee in this case was discharged on March

7, 1994.     The record also shows no indication that a complaint

stating a 11 U.S.C. § 322(d) claim against the trustee has ever

been filed.        Double J argues that because it filed a motion to


      1
      See In re Double J. Operating Co., Inc., No. 00-60764 (5th
Cir. 2001)(per curiam).
      2
      See Clymore v. United States, 217 F.3d 370, 373 (5th Cir.
2000)(citing Hinsley v. Boudloche, 201 F.3d 638, 644 (5th Cir.
2000)).
      3
       See id.
      4
      Cousin v. Lensing, 310 F.3d 843, 847-48 (5th Cir. 2002),
cert. denied, 123 S. Ct. 2277, 156 L. Ed. 2d 136 (2003).

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reopen with the bankruptcy court within the two-year limitation

period that had a § 322(d) complaint attached, the limitation

period did not expire.        Because we agree with the district court

that    the   motion   did   not   evidence   an   intention   to   file   the

attachment at the time the motion was filed, a motion to reopen is

not an administrative prerequisite to filing a § 322(d) case, and

no complaint was filed, we conclude that the limitations period has

in fact expired in this case.

       Additionally, after reviewing the record, we find no abuse of

discretion in the district court’s determination that the passage

of time and absence of extraordinary circumstances beyond Double

J’s control preclude the application of equitable tolling in this

case.

       AFFIRMED.




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