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and remand the proceedings to the Commission. The court directly compromised the demarcation of functions between court and agency by ordering the agency to proceed by rulemaking to establish proper commodity classifications for motor carrier licenses and by instructing the agency to exclude commodities in bulk and household goods unless the applicant demonstrates a special fitness to transport those commodities.20

The intrusion by the court of appeals into the agency's province here is particularly harmful because the court misinterpreted the 1980 Act, reading its legislative mandate too narrowly, and by so doing has hamstrung the agency in its attempt to effectively implement the Act. This Court should take this opportunity, at the initial stages of regulation under the 1980 Act, to settle the controversy over the statu

20 Indeed, a basic factual error in the court's ruling on commodities in bulk is that this really is not a separate commodity but rather only a method of transporting commodities. (45 F.R. at 86,807 colm. 2 last paragraph; App. J, 266a). The mandate, as clarified, requires the Commission routinely to insert "bulk" restrictions in authorizations of general commodities. General commodities means all commodities; and bulk transportation involves the transportation of commodities in such a state that they are fungible, that is, they are either poured, blown, dumped, or shoveled into the truck with the walls of the truck or the trailer forming the container. Thus, a general commodities certificate restricted against the transportation of commodities in bulk would mean, for example, the agency was authorizing a carrier to transport sand only in individualized containers, likewise for the transportation of petroleum, sawdust, coal, talc, and chemicals. No open-dump, liquid-bulk, or pneumatic-bulk trucks could be used. This promotes inefficient and incomplete transportation services, compromises the intent of the 1980 Act, and highlights the problems associated with a court of appeals substituting its judgment for that of an agency having the necessary expertise.

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tory directives of that Act. We believe that if the Court examines the merits, it will reverse the decisions below and endorse the Commission's decisions as consonant with the 1980 Act. (If it does so, the various problems associated with unwarranted restrictions upon the agency's implementation of the Act need not be resolved.)

The Commission continues to maintain, as it has throughout, that the guidelines it issued were not only within the mandate of the Motor Carrier Act of 1980, but would rationally achieve the objectives of that Act. The guidelines unquestionably foster broader, more complete authorities and promote competition. The court of appeals concluded, however, that the Commission went too far in promoting those goals, creating policies favoring overly broad grants of authorities. This holding misconstrues the fundamental purpose of the 1980 Act and the Commission's actions in the two proceedings. Compare the Fifth Circuit's decision in this case with the recent decisions of the Eleventh Circuit in Refrigerated Transport Co., Inc. v. ICC, 673 F.2d 1196 (11th Cir. April 19, 1982), and a different panel of the Fifth Circuit in Central Freight Lines, Inc. v. United States, 669 F.2d 1063 (5th Cir. 1982).

The Commission's actions certainly promote more efficient use of energy resources, as well as carrier equipment.21 Expanded authorities will also enable carriers to offer more complete service to shippers.22

21 The 1980 Act directs the Commission to promote more efficient use of equipment and energy resources. 49 U.S.C. §§ 10101 (a) (7) (D); 10922 (h) (i) (v) ; and 10922 (h) (2).

22 The 1980 Act directs the Commission to promote more responsive service to shippers' needs by, among other things, allowing a wider variety of service options. 49 U.S.C. §§ 10101 (a) (1) (7) (A) and (B).

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Thus, the Commission's actions are harmonious with the 1980 Act and this Court should take this opportunity to affirm the procompetitive mandate of that Act as manifested in the Commission's policy guidelines.

C. The Lower Court Improperly Used Its Mandamus Power To Address Discretionary Agency Functions And To Resolve Ambiguities In Its Earlier Decision This Court has held that the prerequisites for mandamus are appropriately heavy and that this extraordinary writ should "hardly ever!" be issued by an appellate court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). The Court requires two basic findings by a court of appeals: (1) that no alternative adequate remedy exists; and (2) that petitioners' asserted right to mandamus is "clear and indisputable." Id. 35-36; Will v. United States, 389 U.S. 90 (1967); Bankers Life & Cas. Co. v. Holland, 346 U.S. 379 (1953). The use of mandamus in this case was wholly inappropriate in several respects.

First, a fundamental prerequisite to the issuance of a mandamus order of this type is a finding that the agency is in fact not complying with the court's mandate. Clearly, the availability of alternative remedies need never be addressed if no violation of the mandate has occurred.

In its February decision the Fifth Circuit concluded only that it "appeared" that the Commission might be violating its mandate and that "if" the Commission were not in compliance, the potential for future litigation would be great. In other words, the court of appeals was not sure if any violation had occurred, but in case there might be violations, the court decided to mandamus the Commission anyway.

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Although we welcome the court of appeals' resolution of many of the ambiguities in its October decision, we contend now, as we did before, that clarification by way of a writ of mandamus is highly inappropriate. The Commission cannot be found to have knowingly violated a mandate that was unclear and with which the agency attempted good faith compliance.

Second, it is well settled that a court can only mandamus ministerial duties. That is to say, the court of appeals could have ordered the Commission to decide operating rights cases, but it could not order the Commission to either grant or deny the applications in a specified manner-that is a discretionary matter committed to the agency's expert judgment. It cannot mandamus the final discretionary results. See, FPC v. Idaho Power Co., 344 U.S. 17, 20 (1952). As explained, in Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972):

An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt.

This Court has long recognized the Commission's broad discretion in licensing. See Interstate Commerce Commission v. Parker, 326 U.S. 60, 65 (1945). Clearly, the issues involved here whether to grant authority to serve Alaska or Hawaii, or to haul commodities in bulk, or household goods-are matters entrusted to the sound judgment and discretion of the Commission. Under these circumstances, mandamus definitely is not "clear and indisputable" or "free from doubt." Bankers Life & Cas. Co. v. Holland, supra, 346 U.S. at 384. As this Court determined in

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Allied Chemical Corp. v. Daiflon, Inc., supra, 449 U.S. at 36:

Where a matter is committed to discretion, it cannot be said that a litigant's right to a particular result is 'clear and indisputable'.

The lower court's February mandamus decision should be compared with its subsequent determination, in its March decision (denying mandamus relief as to past Commission decisions) that the prerequisites for mandamus were not established, i.e., petitioners below had failed to show that no alternative remedies were available and that they had a "clear and indisputable" right to the mandamus relief requested. (App. E, 98a). The two decisions cannot be squared. Surely, if the prerequisites for mandamus were not met as to the prior Commission decisions (in which the time for participating in agency proceedings and filing Hobbs Act petitions for review almost assuredly had expired), they definitely have not been met as to all future proceedings.

Third, because the February mandamus order runs to all future licensing proceedings, the mandamus order is defective for overbreadth. As the court held in its March 1982 decision denying mandamus for past actions (American Trucking Associations, Inc. v. Interstate Commerce Commission, 673 F.2d 82, 85-86 (5th Cir. 1982) (App. E, 87a-98a).

Congress has not localized appeals from ICC orders as it has done in the case of those administrative appeals for which it desired uniform review. [footnote omitted] We should not arrogate the decision making authority meant to be exercised by other circuits.

Finally, the February decision abridges unlawfully the Commission's discretion to proceed by adjudica