Restoring the Primary Jurisdiction Doctrine

Abstract

Primary jurisdiction allows a court to refer an issue to an administrative agency for determination when the issue is within the agency’s purview, while still retaining jurisdiction over the case. At first, the doctrine seems like an elegant solution to a complicated problem, facilitating the interaction between courts and agencies confronting complex regulatory issues. But although the doctrine was developed within specific subject areas — rate-setting and labor disputes — where a failure to refer the issue would undermine the pertinent regulatory scheme, courts have expanded its use. The doctrine has become a tool that permits courts to stay or dismiss a case while seeking agency advice on a particular issue, without a finding that such a referral is necessary to forward the purpose of the regulatory scheme. The consequential delay has the potential to cause real harm to the interests of the litigants and to the regulatory scheme.

Courts should re-confine primary jurisdiction to the rate-setting and labor dispute contexts, and, if the doctrine is extended to other areas where the consequence of not doing so would gravely injure the regulatory scheme, recognize the value of an explicit articulation of the doctrine’s applicability and benefits. The consequences of the abandonment of primary jurisdiction in its “advice referral” manifestation will be slight because courts can utilize other mechanisms to encourage agency participation.

Keywords: primary jurisdiction, administrative law