The Primary Jurisdiction Doctrine:Competing Standards ofAppellate Review

I. IntroductionWithin constitutional limits, Congress may create administrative agencies with adjudicatory power.1 Congress may also define the jurisdiction of Article III courts.2 As a result, Congress has the greatest control over the balance of power between courts and agencies. It can provide exclusive jurisdiction over a matter to one tribunal, or provide concurrent jurisdiction to both. Neither courts nor agencies can disregard these statutory boundaries.3 In reality, however, the balance of power is more complicated. Courts and agencies may willingly relinquish adjudicatory power that is rightfully theirs in favor of the other.4When a court wishes to defer to the adjudicatory authority of an agency, there are a number of legal means available, including finality, ripeness, and exhaustion. A related but less popular means of deference is the primary jurisdiction doctrine. Because it is applied infrequently, the shape of this doctrine is not fully defined. The circuit courts employ differing conceptions of primary jurisdiction,5 utilize different factors in their analysis,6 and apply different standards of review.7Standard of review disputes, unfortunately, are particularly difficult to resolve. Without a statutory mandate, or a clear history of appellate practice, there is little to turn to for guidance.8 Judges are often of little help, expressing the standard of review in a few words before addressing the merits. For the attorney contemplating an appeal, however, knowing the applicable standard is crucial.9 First, the standard of review affects the decision whether to appeal because the likelihood of success is a function of "the nature of the error claimed and the standard under which it is reviewed."10 second, the review standard focuses and organizes arguments, and it provides "a shared language of appellate scope.""The standard of review for primary jurisdiction in particular presents a valuable opportunity for litigants. A few circuits have yet to address the problem,12 while others have explicitly left the issue to be decided another day.13 In these circuits there is law to be made, and litigants may persuade the court to adopt a standard advantageous to their position.This Note addresses the issue of the proper standard of appellate review for primary jurisdiction decisions and concludes that they should be reviewed only for an abuse of discretion.14 In reaching this conclusion, Part II begins with a summary of the primary jurisdiction doctrine, including the development and application of the doctrine, as well as a breakdown of the current circuit split. Part III examines the two applicable review standards, namely, de novo and abuse of discretion. Part IV then analyzes the application of the doctrine and determines that primary jurisdiction decisions are best characterized as discretionary, as opposed to factual or legal. Lastly, Part V discusses analogous doctrines, which reinforce the validity of the abuse of discretion standard.II. The Primary Jurisdiction DoctrineIn appropriate circumstances, the primary jurisdiction doctrine provides trial courts a useful tool for advancing certain policy objectives by deferring to the decisionmaking power of administrative tribunals.15 Specifically, it aims to promote better informed legal decisions by proper utilization of administrative expertise, and it seeks to maintain uniform treatment of a regulatory scheme by leaving critical decisions to the appropriate agency.16 When these objectives will be furthered by its application, the doctrine allows a court to refer issues to an agency that, because of a congressional delegation of power, has special knowledge and discretion over the subject matter.17The doctrine arises from a series of Supreme Court cases addressing the Interstate Commerce Commission (ICC) and its regulation of common carriers.18 In these cases, the Court invoked the primary jurisdiction of the ICC in order to give effect to the congressional intent of the Commerce Act. …