317 Ga. 14 FINAL COPY
S22C1252, S22C1259. SMITH v. HI-TECH PHARMACEUTICALS, INC.; and vice versa.
ORDER OF THE COURT.
The Supreme Court today denied the petition for certiorari in these cases.
All the Justices concur.
PINSON, Justice, concurring in the denial of certiorari.
I agree with the Court’s decision to deny further review in this
case. I write separately to flag some questions about the doctrine of
primary jurisdiction.
The doctrine of primary jurisdiction allows a court to “refer” an
issue in a case to an administrative agency and either stays or dis-
misses the case while the agency resolves the issue. See Wright and
Miller, 33 Federal Practice & Procedure § 8366 (2d ed.) (quoting
Reiter v. Cooper, 507 U.S. 258, 268 (113 SCt 1213, 122 LE2d 604)
(1993)); Modjeska, Administrative Law: Practice and Procedure § 6:10 (Aug. 2022 update). The doctrine developed in the U.S. Su-
preme Court, and federal courts have applied it for well over a cen-
tury, see Texas and Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S.
426 (27 SCt 350, 51 LE 553) (1907), in rate-setting cases, see Great
Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285 (42 SCt 477,
66 LE 943) (1922); U.S. Navigation Co. v. Cunard Steamship Co.,
284 U.S. 474 (52 SCt 247, 76 LE 408) (1932); Far East Conference v.
United States, 342 U.S. 570 (72 SCt 492, 96 LE 576) (1952); United
States v. Western Pacific R. Co., 352 U.S. 59 (77 SCt 161, 1 LE2d
126) (1956); labor-relations cases, see San Diego Bldg. Trades Coun-
cil v. Garmon, 359 U.S. 236 (79 SCt 773, 3 LE2d 775) (1959); Brown
v. Hotel & Restaurant Employees & Bartenders Intl. Union Local 54,
468 U.S. 491 (104 SCt 3179, 82 LE2d 373) (1984); Sears, Roebuck &
Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180 (98
SCt 1745, 56 LE2d 209) (1978); antitrust cases, Ricci v. Chicago Mer-
cantile Exch., 409 U.S. 289 (93 SCt 573, 34 LE2d 525) (1973); Chi-
cago Mercantile Exch. v. Deaktor, 414 U.S. 113 (94 SCt 466, 38 LE2d
344) (1973); food and drug-labeling cases, see Weinberger v. Bentex
2 Pharmaceuticals, Inc., 412 U.S. 645 (93 SCt 2488, 37 LE2d 235)
(1973); and more, see Southern Utah Wilderness Alliance v. Bureau
of Land Mgmt., 425 F3d 735 (2005) (property); Tassy v. Brunswick
Hosp. Center, Inc., 296 F3d 65 (2002) (public health).
Over time, however, the doctrine has percolated into a number
of state courts, including ours. See Ga. Power Co. v. Cazier, 303 Ga.
820, 825 n.5 (815 SE2d 922) (2018) (collecting state cases). That is
where my questions arise. Our Court has often warned against “un-
critically importing” holdings of federal courts into Georgia law. See,
e.g., Elliott v. State, 305 Ga. 179, 188 (824 SE2d 265) (2019); Buck-
ner-Webb v. State, 314 Ga. 823, 834 (878 SE2d 481) (2022) (Pinson,
J., concurring). Of course, the U.S. Supreme Court’s holdings inter-
preting or applying federal law are binding on state courts. But
when is applying the doctrine of primary jurisdiction a matter of in-
terpreting or applying federal law? And if the answer is “only some-
times,” is there a basis in Georgia law for applying the doctrine when
federal law isn’t involved? I offer some preliminary thoughts on
these questions below.
3 1. The first thing to know is that the doctrine of primary juris-
diction “is really two doctrines.” Arsberry v. Illinois, 244 F3d 558,
563 (7th Cir. 2001) (Posner, J.). See also Diana R. H. Winters, Re-
storing the Primary Jurisdiction Doctrine, 78 Ohio St. L. J. 541, 547
(2017) (explaining that “[p]rimary jurisdiction can be separated into
two strains”). In its “central and original form,” the doctrine applies
“when, in a suit involving a regulated firm but not brought under
the regulatory statute itself, an issue arises that is within the exclu-
sive original jurisdiction of the regulatory agency to resolve.” Ars-
berry, 244 F3d at 563. In these “exclusive agency jurisdiction” cases,
a court refers an issue to an agency because a relevant regulatory
statute requires the agency to resolve it—generally for reasons
grounded in a need for uniformity. Id. (citing Western Pacific R. Co.,
352 U.S. at 64; Cahnmann v. Sprint Corp., 133 F3d 484, 487 (7th
Cir. 1998); Advance United Expressways, Inc. v. Eastman Kodak Co.,
965 F2d 1347, 1352-1353 (5th Cir. 1992); City of Peoria v. Gen. Elec.
Cablevision Corp., 690 F2d 116, 121-122 (7th Cir. 1982)).
4 This form of the doctrine is not so much a “doctrine” as it is
simply a species of statutory interpretation. Abilene Cotton Oil, 204
U.S. 426, long credited as the first application of the doctrine of pri-
mary jurisdiction, see Winters at 552, is a good example. There, a
shipper of cotton seed sued a rail carrier in state court for charging
an unreasonable rate in violation of an alleged common law right.
See Abilene Cotton Oil, 204 U.S. at 430-431. The U.S. Supreme
Court held that the shipper had to raise the argument that the rate
was unreasonable before the federal Interstate Commerce Commis-
sion (“ICC”), with whom the charged rate had been published and
filed. In support of that conclusion, the Court did not rely on its be-
lief that the ICC had the experts who were better suited to resolve
that question. Instead, it marshaled arguments from the text and
context of the Interstate Commerce Act. See id. at 436-437 (explain-
ing that the “fundamental question” was the “scope and effect” of the
Interstate Commerce Act, and that the case “must rest upon an in-
terpretation of the text of the act”). After canvassing the Act in de-
tail, the Court reasoned that allowing courts to adjudicate whether
5 a rate was reasonable in individual cases would give rise to the po-
tential for conflicting rulings and thus non-uniform and discrimina-
tory rates, in direct conflict with the Act’s provisions that were
meant, above all, to ensure uniform and nondiscriminatory rates.
See id. at 440-441. And even though the Act included a savings
clause for common law remedies, that clause “[could not] in reason
be construed as continuing in shippers a common law right, the con-
tinued existence of which would be absolutely inconsistent with the
provisions of the act.” Id. at 446. Finally, the argument that funnel-
ing questions about the reasonableness of rates to the Commission
first would be inefficient or even “harmful” “affords no justification
for so interpreting the statute as to destroy it.” Id. at 447. Put
simply, the shipper had to bring its argument to the ICC because
the statute, as the Court construed it, required as much. See id. at
447-448.
Some decisions following Abilene Cotton Oil are in accord with
this statutory-construction-based approach: in cases otherwise
properly before a lower court, the Court would hold that the court
6 was required to refer issues to an agency for resolution first because
the governing statutory scheme put the issues within the exclusive
jurisdiction of the agency. See Cunard Steamship Co., 284 U.S. at
485 (holding that arguments in the context of an antitrust claim
about the reasonableness of rates fell “within the exclusive prelimi-
nary jurisdiction of the Shipping Board” based on “[t]he scope and
evident purpose of the Shipping Act, as in the case of the Interstate
Commerce Act”); Garmon, 359 U.S. at 246 (holding in the context of
labor relations that “since such [union conduct] is arguably within
the compass of § 7 or § 8 of the Act, the State’s jurisdiction is dis-
placed”).
But since Abilene Cotton Oil, the doctrine of primary jurisdic-
tion has also developed a prudential strain. Instead of sending an
issue to an agency first because a statute contemplates it, courts of-
ten ground this referral merely in a desire for the agency’s expertise.
See Arsberry, 244 F3d at 563 (“The doctrine of primary jurisdiction
is sometimes defined quite differently, as a doctrine that allows a
court to refer an issue to an agency that knows more about the issue,
7 even if the agency hasn’t been given exclusive jurisdiction to decide
it.”). See, e.g., Astiana v. Hain Celestial Grp., Inc., 783 F3d 753, 762
(9th Cir. 2015) (“The purpose of referral to the FDA was not for the
agency to adjudicate Astiana’s claims, but to provide expert advice
that would be useful to the court in considering this lawsuit.”);
American Trucking Assns., Inc. v. Interstate Commerce Comm., 682
F2d 487, 491 (5th Cir. 1982) (“The doctrine of primary jurisdiction .
. . allows a court when faced with an issue which calls into question
an area of special expertise of an agency to suspend proceedings
pending referral of the issue to the agency for its official position.”).
For instance, the U.S. Supreme Court later explained the doctrine
as “a principle, now firmly established, that in cases raising issues
of fact not within the conventional experience of judges or cases re-
quiring the exercise of administrative discretion, agencies created
by Congress for regulating the subject matter should not be passed
over.” Far East Conference, 342 U.S. at 574.1 The Court goes on to
1 Oddly enough, this was the Court’s description of Cunard, 284 U.S. 474,
a decision that mentions agency expertise only in passing and quite plainly (in
8 explain that agencies should get the first crack at those kinds of is-
sues because they “are better equipped than courts by specialization,
by insight gained through experience, and by more flexible proce-
dure.” Id. at 575. And in Ricci, 409 U.S. 289, the Court offered
largely prudential reasons for applying the doctrine rather than ad-
dressing whether the relevant statutory scheme required first resort
to the agency. See id. at 302-304 (in antitrust case, referring issues
about whether certain conduct violated rules of commodity exchange
to Commodity Exchange Commission because answering that ques-
tion was necessary for resolving the underlying antitrust suit, “some
facets of the dispute . . . are within the statutory jurisdiction of the
Commodity Exchange Commission,” and “adjudication of that dis-
pute by the Commission promises to be of material aid in resolving
the immunity question” that was part of the antitrust case). Over
my view) applies the exclusive-agency-jurisdiction, statutory-construction- based form of the doctrine. See id. at 485 (holding that arguments in the con- text of an antitrust claim about the reasonableness of rates fell “within the exclusive preliminary jurisdiction of the Shipping Board” based on “[t]he scope and evident purpose of the Shipping Act, as in the case of the Interstate Com- merce Act”). 9 time, lower federal courts have incorporated this and similar
agency-expertise-focused language into a variety of multi-factor bal-
ancing tests for applying the doctrine. See Winters at 568 (collecting
circuit tests).
2. Teasing out these two different forms of the doctrine of pri-
mary jurisdiction may help answer the questions about whether and
to what extent the doctrine is a part of Georgia law.
Start with the first, core form of the doctrine. As I mentioned
above, the core doctrine requires courts to send to agencies issues
that the governing statutes contemplate the agencies must first re-
solve. Put simply, this is just statutory interpretation. And of course,
Georgia courts too interpret statutes as needed to resolve cases. So
if a litigant argues in a given case before our courts that a statutory
scheme—federal or state—requires referral to an agency to resolve
some issue material to the litigation at hand, Georgia courts will
necessarily “apply the doctrine of primary jurisdiction,” i.e., inter-
pret the statute, to see whether that’s so. If the statute in question
is federal and the U.S. Supreme Court has interpreted it, Georgia
10 courts are bound by the Court’s holdings with respect to that statute,
including any conclusions about whether particular issues are
within the “exclusive primary jurisdiction” of the agency in question.
If the relevant statute is a state law, Georgia courts will do their
own interpretive work to determine whether the statute requires an
agency to resolve any particular issues in the suit. In short, there
can be little doubt that the core form of the doctrine of primary ju-
risdiction, being merely an exercise in statutory interpretation, is
equally applicable in federal and Georgia courts.
The prudential form of the doctrine seems to me a different
beast. The decisions in this camp do not purport to ground the refer-
ral of issues to agencies in the relevant statutory scheme, but rather
in the desire to draw on an agency’s special expertise to decide com-
plex technical issues that judges may know little about. See, e.g.,
Weinberger, 412 U.S. at 654 (approving referral to the FDA for the
determination whether a drug was “safe and effective” within the
meaning of a statute because that question “necessarily implicates
complex chemical and pharmacological considerations,” and
11 “[t]hreshold questions within the peculiar expertise of an adminis-
trative agency are appropriately routed to the agency, while the
court stays its hand”); Far East Conference, 342 U.S. at 573-575. Nor
does that basis for seeking the agency’s advice on such issues appear
to be rooted in positive law, like a statute or a constitution. Rather,
it seems to be a reflection of the Court’s judgment that federal courts
have the power and discretion to “accommodat[e] the complemen-
tary roles of courts and administrative agencies in the enforcement
of law” when they have concurrent jurisdiction over an issue, Far
East Conference, 342 U.S. at 575. See also id. (calling the creation of
the doctrine “one of those creative judicial labors whereby modern
administrative law is being developed as part of our traditional sys-
tem of law”). Indeed, the Court has said before that the doctrine al-
lows courts to “allocat[e] the law-making power over certain aspects
of commercial relations” between courts and agencies. Western Pa-
cific R. Co., 352 U.S. at 65 (citing Louis L. Jaffe, Primary Jurisdic-
tion Reconsidered. The Anti-Trust Laws, 102 Univ. Pa. L. Rev. 577,
583-584 (1954)).
12 If that’s right—if this prudential, discretionary aspect of the
doctrine is built on a judgment about the power and discretion of
federal courts to allocate decision-making in certain kinds of cases
between courts and federal agencies—then the extent to which this
form of the doctrine is necessarily or properly a part of Georgia law
is far less clear. It seems to me that the question whether the courts
of our State have this kind of broad power to allocate or sequence
decision-making between agencies and courts has to be answered by
reference to Georgia law, not federal law. And outside of a state law
that requires our courts to play that role in a specific context, it is
not readily apparent to me where in our law such a power would
come from. But in any event, this judgment about whether our law
gives Georgia courts that kind of authority is one that would require
careful deliberation. Cf. Buckner-Webb, 314 Ga. at 836-837 (Pinson,
J., concurring) (questioning Georgia courts’ adoption of the federal
collateral order doctrine and explaining that “[i]t is an especially
troubling kind of error to arrogate to ourselves as appellate courts
the authority to bend the limits of our own power to review cases”
13 (citing Duke v. State, 306 Ga. 171, 182, 186-187 (829 SE2d 348)
(2019) (acknowledging “core separation of powers principle” that
prevents courts from claiming authority to allow appeals outside of
statutory scheme); Gable v. State, 290 Ga. 81, 85 (720 SE2d 170)
(2011) (explaining that “courts have no authority to create equitable
exceptions to jurisdictional requirements imposed by statute” (cita-
tion and punctuation omitted)); Cook v. State, 313 Ga. 471, 479 (870
SE2d 758) (2022) (overruling “judicially creat[ed]” trial court out-of-
time appeal procedure))).
3. This prompts the question: what have our courts done with
the doctrine of primary jurisdiction? Our Court and the Court of Ap-
peals have addressed or applied the doctrine in only a few decisions.2
2 On occasion our courts have used the terms “primary jurisdiction” or
“exclusive jurisdiction” in addressing arguments that seem to be about admin- istrative exhaustion. See, e.g., Hunnicutt v. Ga. Power Co., 168 Ga. App. 525 (309 SE2d 862) (1983); Bailey v. Wilkes, 162 Ga. App. 410 (291 SE2d 418) (1982). These doctrines are related but distinct. A conclusion that “exhaustion” is required means that the litigant must bring the claim in the first instance to the agency, usually because the litigant is challenging some agency action. See, e.g., Shelley v. Town of Tyrone, 302 Ga. 297, 303 (806 SE2d 535) (2017) (requiring land owners to “exhaust[ ] the administrative remedies provided by law” before raising a zoning claim in court); Ga. Dept. of Community Health v. Ga. Society of Ambulatory Surgery Centers, 290 Ga. 628, 629 (724 SE2d 386)
14 By and large, those decisions have applied the first, core form of the
doctrine. In a handful, we simply applied Abilene Cotton Oil, the
seminal exclusive-jurisdiction decision. We applied that decision in
affirming a referral to the ICC in Belk-Mathews Co. v. Great South-
ern Trucking Co., 218 Ga. 610 (129 SE2d 765) (1963), and we distin-
guished Abilene Cotton Oil in other decisions after concluding that
no issue within the ICC’s primary jurisdiction was present, see West-
ern and Atlantic R. Co. v. White Provision Co., 142 Ga. 246 (82 SE
644) (1914); Beck & Gregg Hardware Co. v. Cook, 210 Ga. 608 (82
SE2d 4) (1954). The Court of Appeals also appears to have applied
Abilene Cotton Oil’s version of the doctrine. See Delta Traffic Svc.,
(2012) (“This Court has consistently held that as long as there is an effective and available administrative remedy, a party is required to pursue that rem- edy before seeking equitable relief in superior court” under the Georgia Admin- istrative Procedure Act. (citation and punctuation omitted)). The doctrine of primary jurisdiction applies where a case is “originally cognizable” in the courts, but an issue in the case must (or in the doctrine’s prudential form, should) go to the agency first for resolution. See Western Pacific R. Co., 352 U.S. at 63-64. See also Arsberry, 244 F3d at 564 (“In [prudential primary-ju- risdiction] cases, either court and agency have concurrent jurisdiction to decide an issue, or only the court has the power to decide it, and seeks merely the agency’s advice. (In the core of the doctrine, in contrast, the court has jurisdic- tion of the case, but the agency of the issue.)”). 15 Inc. v. Snider, 197 Ga. App. 377 (398 SE2d 430) (1990). And in Cen-
tral of Ga. R. Co. v. Culpepper, 209 Ga. 844 (76 SE2d 482) (1953), we
addressed whether the National Railroad Adjustment Board had
“exclusive primary jurisdiction” over a dispute between a carrier and
its employees by reviewing U.S. Supreme Court precedent interpret-
ing the National Railway Labor Act. See id. (declining to apply the
doctrine based on the conclusion that the Board lacked exclusive pri-
mary jurisdiction over the question). In each of these cases, our
courts applied the doctrine by asking whether the relevant statutory
scheme required referral of an issue to the agency. As I noted above,
that strikes me as an appropriate exercise in statutory interpreta-
tion well grounded in Georgia law.
But then there is Cazier, 303 Ga. 820. Cazier involved a class
action against Georgia Power that alleged that the power company
had been collecting municipal franchise fees from customers in
amounts greater than the rates set by the Public Service Commis-
sion. In granting certiorari review, this Court asked the parties to
16 address questions about whether the plaintiffs were required to ex-
haust their administrative remedies before bringing the suit. The
Court ultimately held that exhaustion was not required because the
plaintiffs were not seeking relief from any order of the Commission,
and the case wasn’t “one in which the merits are committed by law
to the exclusive jurisdiction of the Commission.” Id. at 823-824.
After that holding, however, the Court invoked the doctrine of
primary jurisdiction. Noting the possibility that the trial court could
“misconstrue the applicable orders of the Commission,” which would
create a conflict with the Commission’s policy determinations, the
Court offered the doctrine of primary jurisdiction as a “mechanism”
that could prevent the further litigation of the case from “under-
cut[ting] the rate structure approved by the Commission.” Cazier,
303 Ga. at 824 (emphasis in original). Citing federal Court of Ap-
peals decisions, the Court described this doctrine as a “prudential”
and “discretionary” doctrine that would allow the trial court to “per-
mit the Commission to construe its own orders.” Id. at 824. The
17 Court then explained the doctrine’s operation: when “an agency or-
der is at issue in a judicially cognizable dispute, the trial court
properly may refer especially difficult or technical issues within the
specialized competence of an administrative agency to the agency
itself,” as long as “the disputed words ‘are used in a peculiar or tech-
nical sense, and where extrinsic evidence is necessary to determine
their meaning or proper application, so that the inquiry is essen-
tially one of fact and of discretion in technical matters.’” Id. at 826
(quoting Western Pacific R. Co., 352 U.S. at 65-66). And the Court
directed the trial court to consider on remand whether the questions
of construction at issue were sufficiently technical that it should re-
fer them to the Commission under the doctrine of primary jurisdic-
tion. See id. at 826.
This passage in Cazier sounds very much like the prudential
strain of the doctrine of primary jurisdiction that federal courts have
18 applied for some time.3 And the Court appears to have imported (or
at least approved of) that form of the doctrine without identifying
where in Georgia law our courts get the broad power to allocate de-
cision-making authority between courts and agencies in this way.
Instead, the Court simply “note[d] that, although the doctrine of pri-
mary jurisdiction developed principally in the federal courts, it has
been recognized by the courts of last resort in a number of our sister
states.” Cazier, 303 Ga. at 825 n.5 (collecting cases). This passing
footnote reference to the use of the doctrine of primary jurisdiction
in federal courts and courts in other states is not, in my view, a
proper or sufficient basis for recognizing this new aspect of the doc-
trine as a part of Georgia law for the first time. This is not to say
that the prudential form of the doctrine is not properly a part of
3 Certainly the Court’s language in Cazier lines up with the prudential
form of the doctrine. That said, there might have been an argument for apply- ing the core form of the doctrine in that case given the Court’s concern that getting the answer to the questions of construction wrong could “undercut the rate structure approved by the Commission.” 303 Ga. at 824. See Abilene Cot- ton Oil, 204 U.S. at 440-441 (relying on the potential for conflicting rulings in concluding that the Interstate Commerce Act required courts to refer questions bearing on the reasonableness of rates to the ICC). 19 Georgia law—only that we should take a closer look in an appropri-
ate case to consider that question.
*
The parties in this case have not presented these questions
about the extent to which the doctrine of primary jurisdiction is
properly a part of Georgia law. Moreover, the unusual posture of this
case—a challenge under D.C. law, in Georgia courts, dealing with
issues related to the jurisdiction of a federal agency—could compli-
cate any inquiry into the scope of the doctrine of primary jurisdiction
in our courts. But review of these questions may well be warranted
in an appropriate case.
I am authorized to state that Justice Warren and Justice
McMillian join in this concurrence.
20 Ordered August 21, 2023.
Certiorari to the Court of Appeals of Georgia — 364 Ga. App.
476.
Harman Law Firm, Matthew S. Harman, Eric S. Fredrickson,
for Smith.
Miller & Martin, Eileen H. Rumfelt, Robert F. Parsley, Mere-
dith C. Lee, for High-Tech Pharmaceuticals, Inc.