UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 99-10520 Summary Calendar __________________

DAVID B. OPENSHAW,

Plaintiff-Appellant,

versus

EEX CORPORATION; ET AL., Defendants,

EEX CORPORATION; ENSERCH EXPLORATION, INC., Severance Pay Plan; JANICE HARTRICK, Individually and as Administrator and Fiduciary of the Severance Plan

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (3:98-CV-1193-H) _________________________________________________________________ January 27, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Solely at issue is David B. Openshaw’s challenge to the denial

of a Rule 60(b) motion for relief from judgment.

Openshaw filed this action to recover severance benefits; but

on 15 January 1999, an adverse summary judgment dismissed his

action on the merits. Openshaw filed a series of post-judgment

motions, including the Rule 60(b) motion at issue, all of which

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. were denied. On 30 April 1999, after the Rule 60(b) denial,

Openshaw appealed it and the summary judgment.

In our court, the employer moved to dismiss for lack of

jurisdiction, based on the notice of appeal being untimely. Our

court granted the motion as to the summary judgment, but denied it

concerning the Rule 60(b) denial.

Whether “to grant ... relief under Rule 60(b) lies within the

sound discretion of the district court and will be reversed only

for abuse of that discretion”. Edwards v. City of Houston,

(5th Cir. 1996)(en banc). For the requisite abuse of

discretion, Openshaw contends that the district court made

fundamental errors of law in granting summary judgment by

determining the wrong standard for reviewing the severance plan

administrator’s actions; holding that there was no conflict of

interest on the part of the severance plan administrator; and

determining that Openshaw was not retaliated against under § 510 of

ERISA.

Openshaw’s contentions do not meet the usual criteria of

mistake, inadvertence, surprise, or excusable neglect, as listed in

Rule 60(b). Nor under the fundamental misconception of the

governing law basis, read into Rule 60(b), is there any ground for

relief.

Openshaw’s grounds for challenging the Rule 60(b) denial

appear to be no more than camouflage for his forfeited appeal from

the summary judgment. But, as he recognizes, Rule 60(b) is not a

substitute for a timely appeal.

- 2 - AFFIRMED

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