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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,
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
