                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 22, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-51165
                         Summary Calendar


RUTH NUNEZ,

                                      Plaintiff-Appellant,

versus

PATRICIA SIMMS; GLENNA ARCHER,

                                      Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. EP-01-CV-336-DB
                       --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Ruth Nunez appeals the district court’s award of attorneys’

fees to the appellees, the prevailing parties in Nunez’s 42

U.S.C. § 1983 civil rights lawsuit.    Nunez’s suit stemmed from

the termination of her employment contract as a teacher with the

El Paso Independent School District.    Following the assertion of

qualified immunity by the defendants, the district court

dismissed the suit on the basis that Nunez had not alleged the

violation of a clearly established constitutional right as she


     *
        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that this opinion should not be published and is not precedent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.
                           No. 02-51165
                                -2-

had no property interest in her continued employment as a

teacher.   This court affirmed the dismissal.   See Nunez v. Simms,

341 F.3d 385, 386 (5th Cir. 2003).   While the appeal on the

merits was pending, the district court granted the defendants’

motion for attorneys’ fees under 42 U.S.C. § 1988 and FED. R. CIV.

P. 54(d), finding that Nunez’s lawsuit was frivolous.

     Although Nunez’s lawsuit and her appeal on the merits were

unsuccessful, her case was not so lacking in merit that it was

groundless.   See Nunez, 341 F.3d at 387-92; United States v.

Mississippi, 921 F.2d 604, 609 (5th Cir. 1991).   Accordingly, the

district court clearly erred in finding that the lawsuit was

frivolous, and abused its discretion in awarding attorneys’ fees

to the defendants.   See Mississippi, 921 F.2d at 609.

     REVERSED.
