Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade.

Federal Power Act, review of orders under, see section 8251 of Title 16, Conservation.

Federal Trade Commission, review of orders, see sections 21 and 45 of Title 15, Commerce and Trade.

Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title and section 21 of Title 15.

Orders of Federal agencies, see section 2341 et seq. of this title.

Rule 19. Settlement of judgments enforcing orders

When an opinion of the court is filed directing the entry of a judgment enforcing in whole or in part the order of an agency, the agency shall within 14 days thereafter serve upon the respondent and file with the clerk a proposed judgment in conformity with the opinion. If the respondent objects to the proposed judgment as not in conformity with the opinion, he shall within 7 days thereafter serve upon the agency and file with the clerk a proposed judgment which he deems to be in conformity with the opinion. The court will thereupon settle the judgment and direct its entry without further hearing or argument.

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES This is section 12 of the uniform rule (see General Note following Rule 15) with changes in phraseology.

CROSS REFERENCES

Administrative procedure, generally, see section 551 et seq. of Title 5, Government Organization and Employees.

Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade.

Federal Power Act, review of orders under, see section 8251 of Title 16, Conservation.

Federal Trade Commission, review of orders, see sections 21 and 45 of Title 15, Commerce and Trade.

Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title, and section 21 of Title 15.

Orders of Federal agencies, see section 2341 et seq. of this title.

Rule 20. Applicability of other rules to review or enforcement of agency orders

All provisions of these rules are applicable to review or enforcement of orders of agencies, except that Rules 3-14 and Rules 22 and 23 are not applicable. As used in any applicable rule, the term "appellant" includes a petitioner and the term "appellee" includes a respondent in proceedings to review or enforce agency orders. NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES

The proposed rule continues the present uniform practice of the circuits of regulating agency review or enforcement proceedings by the general rules applicable to appeals from judgments of the district courts.

CROSS REFERENCES

Administrative procedure, generally, see section 551 et seq. of Title 5. Government Organization and Employees.

Federal Communications Commission, Civil Aeronautics Board and Federal Reserve Board, review of orders, see section 21 of Title 15, Commerce and Trade.

Federal Power Act, review of orders under, see sections 8251 of Title 16, Conservation.

Federal Trade Commission, review of orders, see sections 21 and 45 of Title 15, Commerce and Trade.

Interstate Commerce Commission, review of orders, see sections 1253 and 2321 et seq. of this title, and section 21 of Title 15.

Orders of Federal agencies, see section 2341 et seq. of this title.

TITLE V. EXTRAORDINARY WRITS Rule 21. Writs of mandamus and prohibition directed to a judge or judges and other extraordinary writs

(a) Mandamus or prohibition to a judge or judges; petition for writ; service and filing.— Application for a writ of mandamus or of prohibition directed to a judge or judges shall be made by filing a petition therefor with the clerk of the court of appeals with proof of service on the respondent judge or judges and on all parties to the action in the trial court. The petition shall contain a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the issues presented and of the relief sought; a statement of the reasons why the writ should issue; and copies of any order or opinion or parts of the record which may be essential to an understanding of the matters set forth in the petition. Upon receipt of the prescribed docket fee, the clerk shall docket the petition and submit it to the court.

(b) Denial; order directing answer.—If the court is of the opinion that the writ should not be granted, it shall deny the petition. Otherwise, it shall order that an answer to the petition be filed by the respondents within the time fixed by the order. The order shall be served by the clerk on the judge or judges named respondents and on all other parties to the action in the trial court. All parties below other than the petitioner shall also be deemed respondents for all purposes. Two or more respondents may answer jointly. If the judge or judges named respondents do not desire to appear in the proceeding, they may so advise the clerk and all parties by letter, but the petition shall not thereby be taken as admitted. The clerk shall advise the parties of the dates on which briefs are to be filed, if briefs are required, and of the date of oral argument. The proceeding shall be given preference over ordinary civil cases.

(c) Other extraordinary writs.-Application for extraordinary writs other than those provided for in subdivisions (a) and (b) of this rule shall be made by petition filed with the clerk of the court of appeals with proof of service on the parties named as respondents. Proceedings on such application shall conform, so far as is practicable, to the procedure prescribed in subdivisions (a) and (b) of this rule.

(d) Form of papers; number of copies.-All papers may be typewritten. Three copies shall be filed with the original, but the court may direct that additional copies be furnished.

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The authority of courts of appeals to issue extraordinary writs is derived from 28 U.S.C. § 1651. Subdivi

sions (a) and (b) regulate in detail the procedure surrounding the writs most commonly sought-mandamus or prohibition directed to a judge or judges. Those subdivisions are based upon Supreme Court Rule 31, with certain changes which reflect the uniform practice among the circuits (Seventh Circuit Rule 19 is a typical circuit rule). Subdivision (c) sets out a very general procedure to be followed in applications for the variety of other writs which may be issued under the authority of 28 U.S.C. § 1651.

CROSS REFERENCES

All Writs Act, see section 1651 of this title.

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

Rule 22. Habeas corpus proceedings

(a) Application for the original writ.—An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made to a circuit judge, the application will ordinarily be transferred to the appropriate district court. If an application is made to or transferred to the district court and denied, renewal of the application before a circuit judge is not favored; the proper remedy is by appeal to the court of appeals from the order of the district court denying the writ.

(b) Necessity of certificate of probable cause for appeal.-In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of probable cause is not required.

NOTES OF ADVISORY COMMITTEE on Appellate RULES Subdivision (a). Title 28 U.S.C. § 2241(a) authorizes circuit judges to issue the writ of habeas corpus. Section 2241(b), however, authorizes a circuit judge to decline to entertain an application and to transfer it to the appropriate district court, and this is the usual practice. The first two sentences merely make present practice explicit. Title 28 U.S.C. § 2253 seems clearly to contemplate that once an application is presented to a district judge and is denied by him, the remedy is an appeal from the order of denial. But the language of 28 U.S.C. § 2241 seems to authorize a second original application to a circuit judge following a denial by a district judge. In re Gersing, 79 U.S.App.D.C. 245, 145 F.2d 481 (D.C. Cir., 1944) and Chapman v. Teets, 241 F.2d 186 (9th Cir., 1957) acknowledge the availability of such a procedure. But the procedure is ordinarily a

waste of time for all involved, and the final sentence attempts to discourage it.

A court of appeals has no jurisdiction as a court to grant an original writ of habeas corpus, and courts of appeals have dismissed applications addressed to them. Loum v. Alvis, 263 F.2d 836 (6th Cir., 1959); In re Berry, 221 F.2d 798 (9th Cir., 1955); Posey v. Dowd, 134 F.2d 613 (7th Cir., 1943). The fairer and more expeditious practice is for the court of appeals to regard an application addressed to it as being addressed to one of its members, and to transfer the application to the appropriate district court in accordance with the provisions of this rule. Perhaps such a disposition is required by the rationale of In re Burwell, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956).

Subdivision (b). Title 28 U.S.C. § 2253 provides that an appeal may not be taken in a habeas corpus proceeding where confinement is under a judgment of a state court unless the judge who rendered the order in the habeas corpus proceeding, or a circuit justice or judge, issues a certificate of probable cause. In the interest of insuring that the matter of the certificate will not be overlooked and that, if the certificate is denied, the reasons for denial in the first instance will be available on any subsequent application, the proposed rule requires the district. judge to issue the certificate or to state reasons for its denial.

While 28 U.S.C. § 2253 does not authorize the court of appeals as a court to grant a certificate of probable cause, In re Burwell, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956) makes it clear that a court of appeals may not decline to consider a request for the certificate addressed to it as a court but must regard the request as made to the judges thereof. The fourth sentence incorporates the Burwell rule.

Although 28 U.S.C. § 2253 appears to require a certificate of probable cause even when an appeal is taken by a state or its representative, the legislative history strongly suggests that the intention of Congress was to require a certificate only in the case in which an appeal is taken by an applicant for the writ. See United States ex rel. Tillery v. Cavell, 294 F.2d 12 (3d Cir., 1960). Four of the five circuits which have ruled on the point have so interpreted section 2253. United States ex rel. Tillery v. Cavell, supra; Buder v. Bell, 306 F.2d 71 (6th Cir., 1962); United States ex rel. Calhoun v. Pate, 341 F.2d 885 (7th Cir., 1965); State of Texas v. Graves, 352 F.2d 514 (5th Cir., 1965). Cf. United States ex rel. Carrol v. La Vallee, 342 F.2d 641 (2d Cir., 1965). The final sentence makes it clear that a certificate of probable cause is not required of a state or its representative.

CROSS REFERENCES

Habeas corpus generally, see sections 2241 to 2256 of this title.

Suspension of habeas corpus, see Const. Art. 1, § 9, cl. 2.

Rule 23. Custody of prisoners in habeas corpus proceedings

(a) Transfer of custody pending review.— Pending review of a decision in a habeas corpus proceeding commenced before a court, justice or judge of the United States for the release of a prisoner, a person having custody of the prisoner shall not transfer custody to another unless such transfer is directed in accordance with the provisions of this rule. Upon application of a custodian showing a need therefor, the court, justice or judge rendering the decision may make an order authorizing transfer and providing for the substitution of the successor custodian as a party.

(b) Detention or release of prisoner pending review of decision failing to release.-Pending

11-611 0-83 Vol. 12 — 33 QL 3

review of a decision falling or refusing to lease a prisoner in such a prozeding the prs oner may be detained in the custody from which release is sought, or in other appropriate custody, or may be enlarged upon ha regnizance, with or without surety, as may appear fitting to the court or justice or judge rendering the decision, or to the court of appeals or to the Supreme Court, or to a judge or justice of either court.

(c) Release of prisoner pending review of dect sion ordering release-Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.

(d) Modification of initial order respecting custody.-An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.

NOTES OF ADVISORY COMMITTEE ON APPELLATE Rules

The rule is the same as Supreme Court Rule 49, as amended on June 12, 1967, effective October 2, 1967.

CROSS REFERENCES

Habeas corpus generally, see sections 2241 to 2256 of this title.

Buspension of habeas corpus, see Const. Art. 1, § 9, cl. 2.

Rule 24. Proceedings in forma pauperis

(a) Leave to proceed on appeal in forma pauperis from district court to court of appeals.—A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit, showing, in the detail prescribed by Form 4 of the Appendix of Forms, his inability to pay fees and costs or to give security therefor, his belief that he is entitled to redress, and a statement of the issues which he intends to present on appeal. If the motion is granted, the party may proceed without further application to the court of appeals and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the district court shall state in writing the reasons for the denial.

Notwithstanding the provisions of the precedIng paragraph, a party who has been permitted to proceed in an action in the district court in forma pauperis, or who has been permitted to proceed there as one who is financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the district court shall certify that the appeal is not taken in good faith or shall find that the party is oth

ervise not enculed so to proceed, in which event the distres cours shall state in writing the reasons for such certification or finding.

If a mouce for leave to proceed on appeal in forma paupers is denied by the district court, or f the distra coun shall certify that the appeal a not taken in good faith or shall find that the party is otherwise not entitled to proceed in forma paupers, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. The motion shall be accompanied by a copy of the affidavit fled in the district court, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the district court, and by a copy of the statement of reasons given by the district court for its action

(b) Leave to proceed on appeal or review in forma pauperis in administrative agency proceedings-A party to a proceeding before an administrative agency, board, commission or officer (including, for the purpose of this rule, the United States Tax Court) who desires to proceed on appeal or review in a court of appeals in forma pauperis, when such appeal or review may be had directly in a court of appeals, shall file in the court of appeals a motion for leave so to proceed, together with the affidavit prescribed by the first paragraph of (a) of this Rule 24.

(c) Form of briefs, appendices and other papers.-Parties allowed to proceed in forma pauperis may file briefs, appendices and other papers in typewritten form, and may request that the appeal be heard on the original record without the necessity of reproducing parts thereof in any form.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979.)

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES Subdivision (a). Authority to allow prosecution of an appeal in forma pauperis is vested in "[a]ny court of the United States" by 28 U.S.C. § 1915(a). The second paragraph of section 1915(a) seems to contemplate initial application to the district court for permission to proceed in forma pauperis, and although the circuit rules are generally silent on the question, the case law requires initial application to the district court. Hayes v. United States, 258 F.2d 400 (5th Cir., 1958), cert. den. 358 U.S. 856, 79 S.Ct. 87, 3 L.Ed.2d 89 (1958); Elkins v. United States, 250 F.2d 145 (9th Cir., 1957) see 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Farley, 238 F.2d 575 (2d Cir., 1956) see 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957). D.C. Cir. Rule 41(a) requires initial application to the district court. The content of the affidavit follows the language of the statute; the requirement of a statement of the issues comprehends the statutory requirement of a statement of "the nature of the ... appeal. . . ." The second sentence is in accord with the decision in McGann v. United States, 362 U.S. 309, 80 S.Ct. 725, 4 L.Ed.2d 734 (1960). The requirement contained in the third sentence has no counterpart in present circuit rules, but it has been imposed by decision in at least two circuits. Ragan v. Cox, 305 F.2d 58 (10th Cir., 1962); United States ex rel. Breedlove v. Dowd, 269 F.2d 693 (7th Cir., 1959).

The second paragraph permits one whose indigency has been previously determined by the district court to proceed on appeal in forma pauperis without the

necessity of a redetermination of indigency, while reserving to the district court its statutory authority to certify that the appeal is not taken in good faith, 28 U.S.C. 1915(a), and permitting an inquiry into whether the circumstances of the party who was originally entitled to proceed in forma pauperis have changed during the course of the litigation. Cf. Sixth Circuit Rule 26.

The final paragraph establishes a subsequent motion in the court of appeals, rather than an appeal from the order of denial or from the certification of lack of good faith, as the proper procedure for calling in question the correctness of the action of the district court. The simple and expeditious motion procedure seems clearly preferable to an appeal. This paragraph applies only to applications for leave to appeal in forma pauperis. The order of a district court refusing leave to initiate an action in the district court in forma pauperis is reviewable on appeal. See Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950).

Subdivision (b). Authority to allow prosecution in forma pauperis is vested only in a "court of the United States" (see Note to subdivision (a), above). Thus in proceedings brought directly in a court of appeals to review decisions of agencies or of the Tax Court, authority to proceed in forma pauperis should be sought in the court of appeals. If initial review of agency action is had in a district court, an application to appeal to a court of appeals in forma pauperis from the judgment of the district court is governed by the provisions of subdivision (a).

NOTES OF ADVISORY COMMITTEE ON APPELLATE
RULES-1979 AMENDMENT

The proposed amendment reflects the change in the title of the Tax Court to "United States Tax Court." See 26 U.S.C. § 7441.

CROSS REFERENCES

Affidavit of inability to pay fees and expenses of consuls, counsel, interpreters and witnesses, see section 3495 of Title 18, Crimes and Criminal Procedure. Extradition by foreign government, witnesses for indigent fugitives, see section 3191 of Title 18.

Fees for transcripts in criminal or habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, payment by United States, see section 753 of this title.

Habeas corpus proceeding, indigent petitioner entitled to documents without cost, see section 2250 of this title.

TITLE VII. GENERAL PROVISIONS

Rule 25. Filing and service

(a) Filing.-Papers required or permitted to be filed in a court of appeals shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except that briefs and appendices shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is utilized. If a motion requests relief which may be granted by a single judge, the judge may permit the motion to be filed with him, in which event he shall note thereon the date of filing and shall thereafter transmit it to the clerk.

(b) Service of all papers required.-Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting for him on all other par

ties to the appeal or review. Service on a party represented by counsel shall be made on coun

sel.

(c) Manner of service.-Service may be personal or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing.

(d) Proof of service.-Papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the person served, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. The clerk may permit papers to be filed without acknowledgment or proof of service but shall require such to be filed promptly thereafter.

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES

The rule that filing is not timely unless the papers filed are received within the time allowed is the familiar one. Ward v. Atlantic Coast Line R.R. Co., 265 F.2d 75 (5th Cir., 1959), rev'd on other grounds 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960); Kahler-Ellis Co. v. Ohio Turnpike Commission, 225 F.2d 922 (6th Cir., 1955). An exception is made in the case of briefs and appendices in order to afford the parties the maximum time for their preparation. By the terms of the exception, air mail delivery must be used whenever it is the most expeditious manner of delivery.

A majority of the circuits now require service of all papers filed with the clerk. The usual provision in present rules is for service on "adverse" parties. In view of the extreme simplicity of service by mail, there seems to be no reason why a party who files a paper should not be required to serve all parties to the proceeding in the court of appeals, whether or not they may be deemed adverse. The common requirement of proof of service is retained, but the rule permits it to be made by simple certification, which may be endorsed on the copy which is filed.

CROSS REFERENCES

Notice of motions, see rule 27.

Rule 26. Computation and extension of time

(a) Computation of time.-In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period extends until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in this rule "legal holiday" includes New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States. It shall also include a day appointed as a holiday by the state wherein the district court which rendered the judgment or order which is or may be appealed from is situated, or by the

state wherein the principal office of the clerk of the court of appeals in which the appeal is pending is located.

(b) Enlargement of time.-The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal. Nor may the court enlarge the time prescribed by law for filing a petition to enjoin, set aside, suspend, modify, enforce or otherwise review, or a notice of appeal from, an order of an administrative agency, board, commission or officer of the United States, except as specifically authorized by law. (c) Additional time after service by mail.— Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by mail, 3 days shall be added to the prescribed period.

(As amended Mar. 1, 1971, eff. July 1, 1971.)

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES The provisions of this rule are based upon FRCP 6 (a), (b) and (e). See also Supreme Court Rule 34 and FRCRP 45. Unlike FRCP 6(b), this rule, read with Rule 27, requires that every request for enlargement of time be made by motion, with proof of service on all parties. This is the simplest, most convenient way of keeping all parties advised of developments. By the terms of Rule 27(b) a motion for enlargement of time under Rule 26(b) may be entertained and acted upon immediately, subject to the right of any party to seek reconsideration. Thus the requirement of motion and notice will not delay the granting of relief of a kind which a court is inclined to grant as of course. Specifically, if a court is of the view that an extension of time sought before expiration of the period originally prescribed or as extended by a previous order ought to be granted in effect ex parte, as FRCP 6(b) permits, it may grant motions seeking such relief without delay.

NOTES OF ADVISORY COMMITTEE ON APPELLATE
RULES-1971 AMENDMENT

The amendment adds Columbus Day to the list of legal holidays to conform the subdivision to the Act of June 28, 1968, 82 Stat. 250, which constituted Columbus Day a legal holiday effective after January 1, 1971.

The Act, which amended Title 5, U.S.C. § 6103(a), changes the day on which certain holidays are to be observed. Washington's Birthday, Memorial Day and Veterans Day are to be observed on the third Monday in February, the last Monday in May and the fourth Monday in October, respectively, rather than, as heretofore, on February 22, May 30, and November 11, respectively. Columbus Day is to be observed on the second Monday in October. New Year's Day, Independence Day, Thanksgiving Day and Christmas continue to be observed on the traditional days.

CROSS REFERENCES

Time to appeal to courts of appeal, see section 2107 of this title.

Rule 27. Motions

(a) Content of motions; response; reply.Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other

parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits or other papers, they shall be served and filed with the motion. Any party may file a response in opposition to a motion other than one for a procedural order [for which see subdivision (b)] within 7 days after service of the motion, but motions authorized by Rules 8, 9, 18 and 41 may be acted upon after reasonable notice, and the court may shorten or extend the time for responding to any motion.

(b) Determination of motions for procedural orders.-Notwithstanding the provisions of (a) of this Rule 27 as to motions generally, motions for procedural orders, including any motion under Rule 26(b), may be acted upon at any time, without awaiting a response thereto, and pursuant to rule or order of the court, motions for specified types of procedural orders may be disposed of by the clerk. Any party adversely affected by such action may by application to the court request consideration, vacation or modification of such action.

(c) Power of a single judge to entertain motions. In addition to the authority expressly conferred by these rules or by law, a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court.

(d) Form of papers; number of copies.—All papers relating to motions may be typewritten. Three copies shall be filed with the original, but the court may require that additional copies be furnished.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979.)

NOTES OF ADVISORY COMMITTEE ON APPELLATE RULES

Subdivisions (a) and (b). Many motions seek relief of a sort which is ordinarily unopposed or which is granted as of course. The provision of subdivision (a) which permits any party to file a response in opposition to a motion within 7 days after its service upon him assumes that the motion is one of substance which ought not be acted upon without affording affected parties an opportunity to reply. A motion to dismiss or otherwise determine an appeal is clearly such a motion. Motions authorized by Rules 8, 9, 18 and 41 are likewise motions of substance; but in the nature of the relief sought, to afford an adversary an automatic delay of at least 7 days is undesirable, thus such motions may be acted upon after notice which is reasonable under the circumstances.

The term "motions for procedural orders” is used in subdivision (b) to describe motions which do not substantially affect the rights of the parties or the ultimate disposition of the appeal. To prevent delay in the disposition of such motions, subdivision (b) provides that they may be acted upon immediately without awaiting a response, subject to the right of any