210
Per Curiam
an unpublished order, the Court of Appeals granted the petition and stayed the scheduled retrial. It stated that its prior decision had ordered the District Court to recalculate the damages "and to enter final judgment thereon." It also reiterated that pursuant to its earlier mandate, the District Court should closely examine two cases it had previously noted as comparable to what would be an appropriate award in petitioner's case.1
Petitioner contends that this action of the Court of Appeals violated her Seventh Amendment right to a jury trial.2 We agree. The Seventh Amendment provides that "the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." U. S. Const., Amdt. 7.
1 After the Court of Appeals issued its mandamus order, the District Court again recalculated the damages and entered judgment for petitioner in the amount of $15,000, which was the greater of the amounts awarded in the two cases noted by the Court of Appeals. Petitioner's appeal from that judgment is pending in the Court of Appeals. We do not think it appropriate to stay our decision, however, since the Court of Appeals, at the time it issued its writ of mandamus, was presented with petitioner's Seventh Amendment claim in the District Court's memorandum opinion granting a new trial.
2 Respondents argue that we should not consider petitioner's Seventh Amendment claim because she failed to raise it in her prior petition for certiorari. Hetzel v. County of Prince William, 89 F. 3d 169 (CA4), cert. denied, 519 U. S. 1028 (1996). We think it apparent, however, that petitioner did not raise this claim at that time because she reasonably construed the Court of Appeals' decision as not depriving her of the option of a new trial if she were to reject the remitted damages award. The Court of Appeals' decision ordered only that the judgment be reversed and the case remanded to the District Court for recalculation of damages. 83 F. 3d, at 173. To interpret that decision as precluding the option of a new trial would require petitioner to assume a deviation from normal practice and an action by the Court of Appeals that at minimum implicated constitutional concerns. We agree with the District Court that the original mandate was not so explicit as to compel that interpretation.
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