dissenting:
The majority displays an unusual lenity about jurisdiction, which is not apparent in its discussion of the merits. An errant lawyer is treated with unaccustomed consideration and indeed indulgence, with the result that a widow loses much of what a *238district judge — perhaps in an excess of generosity — has given her. I certainly do not suggest that the majority intended to go easy on jurisdiction in order to bear down on the merits. But that, for better or for worse, is the result of its uneven approach.
The majority considers the question of jurisdiction from the perspective of “excusable neglect” in a case where I believe such consideration is inconsistent with our prior case law. I do not quarrel with the majority’s analysis insofar as it clearly signals a trend to more flexibility in dealing with questions of jurisdiction. But the majority has strayed from our existing jurisprudence in forgiving an attorney’s failure to file a timely notice of appeal (because of a postjudgment motion) when such a requirement is emphatically signaled by our cases.
To begin, there ought to be great difficulty in finding excusable neglect here. The motion in question referred specifically to Rule 59 — “plaintiff moves this court pursuant to R. 59 of the Federal Rules of Civil Procedure” — giving fair warning that the time for filing a notice of appeal was tolled (or at least that this was a strong possibility). The majority does not even mention the common practice of filing two notices of appeal if there is any question whether Rule 59 applies.
In any event, there should have been slight doubt that the principles of Rule 59 govern this case. The key to this conclusion is Charles v. Daley, 799 F.2d 343 (7th Cir.1986), which settled matters in this circuit. In that case, we wrote that substantive motions served within ten days of the entry of a judgment should be construed as Rule 59 motions, which toll the time for appeal. Id. at 347. The majority argues that this statement is too broad because, certainly, “postjudgment motions for attor-' ney’s fees and costs are not Rule 59 motions even when filed within ten days of the judgment.” At 233. From this logic it concludes that “the potential for confusion was there.” Id.
With all respect, I believe the majority’s approach is misguided. Charles v. Daley does not say that all substantive, post-judgment motions filed within ten days of judgment are Rule 59 motions: it says that they should be treated as Rule 59 motions. Charles v. Daley, 799 F.2d at 347 (“all substantive motions served within 10 days of the entry of a judgment will be treated as based on Rule 59...”) (emphasis supplied). See also Soo Line R.R. v. Escanaba & Lake Superior R.R., 840 F.2d 546, 549 (7th Cir.1988); Kaszuk v. Bakery & Confectionary Union, 791 F.2d 548, 553 (7th Cir.1986) (per curiam) (both suggesting that motion for prejudgment interest is “substantive” and not collateral). Cf. Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 1132, 99 L.Ed.2d 289 (1988) (Charles v. Daley rule not applicable for costs, a collateral issue). And this analysis has been repeated in nearly every Seventh Circuit opinion to consider the question since Charles v. Daley.1
Not only is the policy underlying these decisions apparent, but it has been explicitly recognized by this court. Judge Easter-brook set the stage for this policy by announcing in Charles v. Daley that we adopted as our rule the Fifth Circuit’s reasoning in Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.1986) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986), that all substantive motions filed within ten days should be treated as Rule 59 motions because “[a] bright-line rule is essential to carry out the very purpose of the 1979 amendment to Rule 4(a)(lt) and to avoid *239wasteful confusion over the status of a previously filed notice of appeal.” Id. at 667 (emphasis supplied); see 799 F.2d at 347. Indeed, our decisions even before Harcon Barge reflected this approach. See Western Indus., Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983) (“Post-judgment motions filed within 10 days should where possible be construed as Rule 59(e) motions to avoid otherwise endless hassles over proper characterization.”).
Further, in Western Industries, we expressly warned litigants not to file their notices of appeal before the time for making a post-judgment motion has elapsed: “We therefore caution parties that do not want to run the risk of having their appeals dismissed as premature to wait 10 days before filing the notice of appeal.” 709 F.2d at 17. A clearer warning could not have been given. Yet the Plan in the case before us still filed its notice of appeal seven days after the entry of the district court’s order, in direct contravention of our advice in Western Industries. That the majority characterizes this as “excusable neglect,” given the clear state of our jurisprudence and our cautionary remarks, is surprising.
To justify its finding of jurisdiction the majority expresses the view that dismissal is too harsh a “sanction” for the failure to file a timely appeal in this case. The opinion muses about retributive justice and deterrence. It suggests that the Plan and its lawyer may not deserve to be thrown out of court and, in any event, do not need to be thrown out of court to persuade them to. be more careful in the future. It analogizes: “Life imprisonment is not an intelligent sanction for a parking ticket; and for an understandable and harmless error that results in a failure to file a timely notice of appeal the intelligent sanction is not automatic forfeiture of the appeal....” Supra at 232. This analysis misses the point: the filing of a timely appeal is a jurisdictional predicate. Therefore, the dismissal of an action for failure to file a timely appeal is not a “sanction” at all; rather, it is simply a recognition that the court cannot pass on the merits of the case. Our cases have treated it this way and it is difficult to see why this ease is an exception.
With respect to the merits, I do not quarrel with the essentials of the majority’s analysis (I simply believe there is no jurisdiction to reach the merits). But I am at a loss to understand some of the majority’s proffered justifications for its result. Mr. Lorenzen deferred his retirement for six months for the convenience of his employer. There is nothing to suggest that anyone brought to his or his wife’s attention the possibility that she would suffer drastic financial penalties if he happened to die in the interim. Nor certainly is there any indication that he “gambled” six months’ additional compensation against his wife’s taking the risk of pension loss. The “rational bookmaker’s” approach to problems is singularly out of place here.
By the same token there is no evidence that Mrs. Lorenzen knew she would suffer financially if she allowed life supports to be withdrawn from her husband “too soon.” The human costs of this kind of decision are so overwhelming, economics is the wrong analysis to bring to the problem. And a cost-benefit study is beside the point. Fate claimed Mr. Lorenzen in a period when he was doing his employer a favor. And fate pressed on Mrs. Lorenzen a tragic choice which, quite by chance from her point of view, resulted in losing half her pension benefit. Judge Evans thought these fortuities too cruel and decided the case in favor of the widow. Judge Evans, I believe, stepped back from the remorseless logic of the law with respect both to the time-to-appeal question and to the merits.
On the other hand, the majority’s unusually flexible and sympathetic outlook on jurisdiction has the effect of permitting it to deal quite literally (and unfortunately for Mrs. Lorenzen) with the merits. Although no discrepancy in approach is apparently intended, the loss to Mrs. Loren-zen is no less real or substantial. I do not agree that we have jurisdiction to hear the Plan’s appeal, and I therefore do not reach the merits of the district court’s award.
I therefore respectfully dissent.
. See, e.g., Adams v. Lever Brothers Co., 874 F.2d 393, 394 (7th Cir.1989) ("Plaintiffs' motion to reconsider the June 8 order, whatever its caption, was supported by Rule 59, see Charles v. Daley...") (emphasis supplied); Anilina Fabrique de Colorants v. Aakash Chemicals & Dyestuffs, Inc., 856 F.2d 873, 876 (7th Cir.1988) ("The rule in this circuit is ‘that all substantive motions served within 10 days of the entry of a judgment will be treated as based on Rule 59, and therefore as tolling the time for appeal.’ Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986) (citing Harcon ...).") (emphasis supplied); Marine Bank, Nat’l Ass’n v. Meat Counter, Inc., 826 F.2d 1577, 1579 (7th Cir.1987) (disputed motions treated as Rule 59 motions); Kladis v. Brezek, 823 F.2d 1014, 1017 (7th Cir.1987) (motion made within ten days is treated as Rule 59 motion, "whatever its label”).