dissenting.
If we have jurisdiction to review the Judgment, I agree with reversal for the reasons well stated in Judge Bauer’s opinion.
The more difficult question is whether we have jurisdiction to review the Judgment at all.
The Judgment was entered August 27, 1979. Defendant filed its motion for judgment under Rule 50(b) on September 5, 1979. It was timely filed and thus caused the time for appeal to begin anew on Janu*404ary 14, 1980, the date of entry of the district judge’s order denying the 50(b) motion. Except for a possible thirty-day extension by the district court under Rule 4(a)(5), F.R.A.P., it does not appear that there were any further procedural steps which could extend or postpone the running of the time for appeal.
Although the applicable Rule seems clear enough, counsel and the district judge thought that defendant’s filing of a motion to reconsider tolled the time for appeal.
The majority finds in Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404, a “narrow exception” which validates the present appeal, apparently because of counsel’s reliance on the assurance by the district judge that appellant’s motion for reconsideration tolled the time. But the Thompson exception is too narrow to fit the situation before us.
In Thompson the Court predicated its holding not only on reliance on the district court’s conclusion that a motion had been properly filed, but also upon appellant’s performing “an act which, if properly done, postponed the deadline for the filing of his appeal.”
In the case before us, the filing of a motion for reconsideration of the denial of the 50(b) motion was not an act which, if properly done, would postpone the deadline.
I join the majority in preferring that an appeal filed late in reliance upon a mistaken assurance by a district judge should be treated as timely filed. Perhaps the Supreme Court will broaden the Thompson exception. Perhaps it would not be too thin a fiction to treat the judge’s assurance as a withdrawal of his previous denial, so that the 50(b) motion remained pending. Nevertheless, it seems to me the soundest view that the delay, though unfortunate, rendered the appeal untimely. It should therefore be dismissed.