The Doctrine Of Primary Jurisdiction

• Author: Christopher L. Sagers
• Pages: 173-190

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CHAPTER IX

THE DOCTRINE OF PRIMARY JURISDICTION

The doctrine of primary jurisdiction is not a defense to antitrust

liability. It does not exempt or immunize any particular conduct. Rather,

it is an administrative law doctrine calling for deference in some

circumstances where claims before Article III tribunals turn on issues

entrusted by Congress to administrative agencies. Like all rules of

deference, the doctrine is designed to “promot[e] proper relationships

between the courts and administrative agencies charged with particular

regulatory duties,”

1

and thus it is analogous to other rules of judicial

deference to an agency’s statutory construction,

2

interpretations of its

own regulations,

3

and factfinding.

4

These rules of deference are

supported by multiple rationales, including: (1) Congress’s intent to

delegate those powers to the agencies, (2) the quasi-legislative nature of

the delegated tasks, (3) the idea that agencies are more politically

accountable than the courts, and (4) the superior technical expertise and

1

. United States v. W. Pac. R.R. Co., 352 U.S. 59, 63 (1956).

2

. See, e.g., Chevron U.S.A., Inc. v. Natural Re sources Defense Council,

467 U.S. 837, 842–43 (1984) (holding that courts should defer to

agencies’ reasonable interpretations of ambiguous statutes that they are

charged with enforcing); Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944) (deference owed to the extent agency determination is persuasive).

3

. Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that co urts should

defer to agencies’ reasonabl e interpretations of their own ambiguous

regulations); Chase Bank USA v. McCoy, 131 S. Ct. 871, 880–81 (2011)

(same).

4

. When agencies find facts in for mal proceedings, their findings are subject

to “substantial evidence” review, 5 U.S.C. § 706(2)(E), which is

“extremely deferential to the factfinder,” Metro. Stevedore Co. v. Rambo,

521 U.S. 121, 149 (1997). Informal agency factfinding is reviewed under

the similarly deferential arbitrary and capricious standard. 5 U.S.C. §

706(2)(A); National Ass'n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 658 (2007).

A Handbook on the Scope of Antitrust

174

experience of the agencies in the areas they regulate.

5

The rule of

primary jurisdiction is triggered when an issue the agency has been

tasked with deciding comes before a court before the agency has had a

chance to address it. The rule permits courts to hold the relevant claim in

abeyance or dismiss i t without prejudice and “refer” the issue to the

agency for its consideration in the first instance.

6

A. Origin and Contours of Primary Jurisdiction Doctrine

Despite its name, the doctrine of primary jurisdiction is not

jurisdictional,

7

and indeed a primary jurisdiction referral is only

5

. Chevron, 467 U.S. at 844, 865–66 (explaining that deference to agency

interpretations of ambiguous statutes is justified by these rationales);

Gonzalez v. Oregon, 546 U.S. 243 (2006) (deference should be given to

agency interpretation of its own regulation if the regulatio n was

promulgated under a statute the age ncy is charged with enforcing and if it

reflected the agency’s experience and expertise); Martin v. OSHRC, 499

U.S. 144, 151 (1991) (“[B]ecause applying an agency’s regulation to

complex or changing circumstances calls upon the agency’s unique

expertise and policymaking pr erogatives, [courts] presume that the power

authoritatively to interpret its own regulations is a component of the

agency’s delegated lawmaking powers.”). One co mmentator has offered a

further justification: the goal o f achieving uniformity in the application of

a regulatory scheme. See Peter L. Strauss, One Hundred Fifty Ca ses per

Year: Some Implications of the Supreme Court’s Limited Resources for

Judicia l Review of Agency Action, 87 COLUM. L. REV. 1093, 1117–22

(1987).

6

. See, e.g., Bhanusali v. Orange Reg’l Med. Ctr., 2013 WL 4828657, at *3

(S.D.N.Y. Aug. 12, 2013) (antitrust claim dismissed without prej udice

while state agency considered hospital’s curtailment of physician’s

privileges).

7

. Reiter v. Cooper, 507 U.S. 258, 268–69 (1993) (citation omitted)

(“[P]rimary jurisdiction . . . is a doctrine specifically applicable to claims

properly cognizable in court that contain some issue within the special

competence of a n administrative a gency . . . . Referral of the issue to the

administrative agency does not deprive the court of jurisdiction; it has

discretion either to retain jurisdiction or, if the parties would not be

unfairly disadvantaged, to dismiss the case without prejudice.”); MFS

Sec. Corp. v. NYSE, 277 F.3d 613, 621 –22 (2d Cir. 2002) (Calabresi, J.)

(“The doctrine’s label, however, is singularly infelicitous. The concept

does not mean that the district court lacks jurisdiction over the dispute or

that the litigant must bring the relevant claims to the administrative

authority first (i.e., prior to filing suit in district court).” (citations and