The Primary Jurisdiction Two-Step

The doctrine of primary jurisdiction applies when a claim is originally cognizable in the courts but involves issues that fall within the special competence of an administrative agency. Under the doctrine, a court can stay litigation and refer such issues to the agency for its decision.' Primary jurisdiction is a cousin of better known abstention doctrines that permit (and sometimes require) federal courts to abstain from addressing issues cognizable by state courts or state agencies.2 The essential difference between primary jurisdiction and these other forms of abstention is that primary jurisdiction furthers comity between federal courts and federal agencies rather than federal courts and state institutions. As the Supreme Court has explained, "[n]o fixed formula exists for applying the doctrine of primary jurisdiction."3 When a federal district court decides if an agency has primary jurisdiction over an issue, it must ask "whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation."' One thing is certain: every grant of primary jurisdiction requires district courts to first interpret enabling statutes and then exercise judicial discretion. Because the propriety of primary jurisdiction includes legal and discretionary considerations, circuit courts face the difficult task of deciding whether to review primary jurisdiction decisions de novo or for abuse of discretion. Statutory interpretation is a matter of law and therefore reviewed de novo. Decisions that turn on the discretion of a trial court are reviewed for an abuse of discretion.