Primary Jurisdiction vs. Administrative Exhaustion — Ninth Circuit

The question in Clark v. Time Warner Cable, 2008 U.S. App. LEXIS 9306 (9th Cir. 2008), was whether the doctrine of primary jurisdiction permits a district court to refer a claim raising a novel and technical question of federal telecommunications policy to the Federal Communications Commission for its consideration in the first instance. The case contains a useful reprise of the doctrine:

The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. A court's invocation of the doctrine does not indicate that it lacks jurisdiction. Reiter v. Cooper, 507 U.S. 258, 268-69 (1993). Rather, the doctrine is a "prudential" one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch....

Primary jurisdiction applies in a limited set of circumstances. *** [T]he doctrine is not designed to "secure expert advice" from agencies "every time a court is presented with an issue conceivably within the agency's ambit." *** Instead, it is to be used only if a claim "requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency," *** and if "'protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme,'" ***. [Footnote 8: As such, the doctrine is distinct from administrative exhaustion, which prevents a federal court from exercising jurisdiction over a claim until all required administrative remedies have been pursued....]

When a district court determines that primary jurisdiction applies, it enables a "referral" of the issue to the relevant agency.... In practice, this means that the court either stays proceedings or dismisses the case without prejudice, so that the parties may seek an administrative ruling.... "[T]here is no formal transfer mechanism between the courts and the agency"; rather, the parties are responsible for initiating administrative proceedings themselves....

Although "[n]o fixed formula exists for applying the doctrine of primary jurisdiction," *** we have traditionally examined the factors set forth in General Dynamics, and held that the doctrine applies in cases where there is: "(1) [a] need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration" ***. In considering these factors, we have previously explained that the primary jurisdiction doctrine is designed to protect agencies possessing "quasi-legislative powers" and that are "actively involved in the administration of regulatory statutes."

Held, the FCC is such an agency with respect to the administration of the Telecommunications and Federal Communications Acts, 47 U.S.C. §§ 151, 154. Primary jurisdiction properly applied by District Court; dismissal of case affirmed.

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