Margaret Holland, Donna Ramsey, Carolyn Webster, Garnettealexander, Plaintiffs-appellees, v. Dewey Bone, Individually and As Principal of Sylviaelementary School, William Baker, Individually and As Countysuperintendent of Schools of Raleigh County, the Board Ofeducation of the County of Raleigh, a Statutory Corporation,defendants-appellants, v. Continental Casualty Company, a Foreign Corporation, Thirdparty Defendant, 833 F.2d 1005 (4th Cir. 1987)

The defendants, Dewey Bone, principal of Sylvia Elementary School, William Baker, County Superintendent of Schools of Raleigh County, and The Board of Education of the County of Raleigh appeal from the order of the district court denying their motion for dismissal or summary judgment based on res judicata grounds in this 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986 action.

The district court's order is not a "final decision" under 28 U.S.C. § 1291. It does not dispose of all the issues so that nothing remains to be determined. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). The order, moreover, does not fall within the narrow exception to Sec. 1291 articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47 (1949). The defendants' assertion of res judicata is nothing more than an assertion of an affirmative defense whose denial is not appealable. Freeman v. Kohl & Vick Machine Works, 673 F.2d 196, 200 (7th Cir. 1982). The defendants have made no showing that res judicata gives them any "claim of right" to an immunity from suit. Cf. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the dispositive issues recently have been decided authoritatively. The Appellants' motion to vacate is denied.

DISMISSED.