Federal Rule of Civil Procedure 59 allows a district court to “grant a new trial on all or some of the issues . . . .” Because an order for a new trial is not a final decision, it cannot typically be appealed until after the new trial. There are exceptions—but only when there are no questions of fact, only questions of law. And that includes questions of fact already resolved by the jury but reopened by the trial court using Rule 59.

The Second Circuit recently faced just this situation. Derrick Bryant sued the Meriden, Connecticut, Police Department and several police officers, alleging they used excessive force when they arrested and interrogated Bryant. The police officers conceded that disputed facts prevented summary judgment. A jury found the police department and officers not liable, but the district court ordered a new trial on Bryant’s claims against two of the officers. The officers filed an interlocutory appeal, arguing they were protected by qualified immunity.

The Second Circuit dismissed the appeal for lack of jurisdiction, holding that disputed facts barred the interlocutory appeal. Although the jury’s verdict had resolved any factual disputes, “given the district court’s conclusion that the jury’s verdict . . . was against the weight of the evidence, that verdict no longer resolves those factual disputes.” The district court’s order for a new trial essentially reset the case to where it stood before the trial: “Fundamentally, then, this case is not in a meaningfully different posture than it was prior to trial, where the officers acknowledge that a finding of qualified immunity would have been premature. It remains premature now.”

Read the Second Circuit’s opinion here.