Primary jurisdiction allows a court with jurisdiction to stay or dismiss so that
an agency may first address an issue within its special competence.
Factors. Whether the question is within the conventional experience of
judges or requires the exercise of administrative discretion; whether the
question requires uniformity across cases; whether the agency has a mechanism to
address it; and whether prior application has been made.
Distinguished from exhaustion. Exhaustion applies where a claim is
cognizable only after agency processes are complete. Primary jurisdiction
applies where a court could decide, but the agency should go first.
Where it arises commercially. Rate and tariff disputes with regulated
utilities and carriers; questions of technical standards; classification and
labelling disputes; and questions turning on regulatory interpretation where the
agency has an active proceeding.
Costs. Referral adds years, and the doctrine is applied sparingly for that
reason. Courts often decline where the agency has no proceeding available to the
parties.
Procedure. Stay rather than dismissal where limitation periods are at risk,
with a schedule for reporting on the agency proceeding.
Strategic use. A defendant facing a claim that depends on a regulatory
question may seek referral both for the substance and for the delay, and courts
are alert to the second motive.
