SMITH v. HI-TECH PHARMACEUTICALS, INC. And Vice Versa ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
SUPREME COURT OF GEORGIA
Case No. S22C1252, S22C1259
August 21, 2023
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
SMITH v. HI-TECH PHARMACEUTICALS, INC.; and vice versa.
The Supreme Court today denied the petition for certiorari in
these cases.
All the Justices concur.
Court of Appeals Case No. A22A0170
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
PINSON, J., 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.) (quot-
ing Reiter v. Cooper, 507 U.S. 258, 268 (113 SCt 1213, 122 LE2d 604)
(1993)); ADMINISTRATIVE LAW PRACTICE AND PROCEDURE § 6:10
(Aug. 2022 update). The doctrine developed in the U.S. Supreme
Court, and federal courts have applied it for well over a century, see
Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426 (27
SCt 350, 51 LEd 553) (1907), in rate-setting cases, see Great North-
ern R. Co. v. Merchants’ Elevator Co., 259 U.S. 285 (42 SCt 477, 66
LEd 943) (1922); U.S. Navigation Co. v. Cunard Steamship Co., 284
U.S. 474 (52 SCt 247, 76 LEd 408) (1932); Far East Conference v.
United States, 342 U.S. 570 (72 SCt 492, 96 LEd 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 Building Trades
Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236 (79
SCt 773, 3 LE2d 775) (1959); Brown v. Hotel & Restaurant Employ-
ees & Bartenders Intl. Union Local 54, 468 U.S. 491 (104 SCt 3179,
82 LE2d 373) (1984); Sears, Roebuck & Co. v. San Diego County Dist.
Council of Carpenters, 436 U.S. 180 (98 SCt 1745, 56 LE2d 209)
(1978); antitrust cases, see Ricci v. Chicago Mercantile Exch., 409
U.S. 289 (993 SCt 573, 34 LE2d 525) (1973); Chicago Mercantile
Exch. v. Deaktor, 414 U.S. 113 (94 SCt 466, 38 LE2d 344) (1973);
food and drug-labeling cases, see Weinberger v. Bentex Pharmaceu-
tiacls, Inc., 212 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 Georgia Power v. Cazier, 303 Ga.
820, 825 n.5 (815 SE2d 922) (2018) (collecting state cases). That is
2
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.
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
3
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, 77; Cahnmann v. Sprint Corp., 133 F3d 184, 487 (7th
Cir. 1998); Advance United Expressways, Inc. v. Eastman Kodak Co.,
965 F2d 1347, 1352-1353 (5th Cir. 1992); City of Peoria v. General
Electric Cablevision Corp., 690 F2d 116, 121-122 (7th Cir. 1982)).
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
4
was unreasonable before the federal Interstate Commerce Commis-
sion, with whom the charged rate had been published and filed. In
support of that conclusion, the Court did not rely on its belief that
the ICC had the experts who were better suited to resolve that ques-
tion. Instead, it marshaled arguments from the text and context of
the Interstate Commerce Act. See id. at 436-437 (explaining that the
“fundamental question” was the “scope and effect” of the Interstate
Commerce Act, and that the case “must rest upon an interpretation
of the text of the act”). After canvassing the Act in detail, the Court
reasoned that allowing courts to adjudicate whether a rate was rea-
sonable in individual cases would give rise to the potential for con-
flicting rulings and thus non-uniform and discriminatory 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 contin-
uing in shippers a common-law right, the continued existence of
which would be absolutely inconsistent with the provisions of the
5
act.” Id. at 446. Finally, the argument that funneling questions
about the reasonableness of rates to the Commission first would be
inefficient or even “harmful” “affords no justification for so interpret-
ing 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
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
eviden[t] 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
6
the compass of s 7 or s 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,
even if the agency hasn’t been given exclusive jurisdiction to resolve
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.”); Am.
Trucking Assns., Inc. v. Interstate Commerce Commn., 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
7
of special expertise of an agency to suspend proceedings pending re-
ferral of the issue to the agency for its official position.”). For in-
stance, 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 requiring
the exercise of administrative discretion, agencies created by Con-
gress for regulating the subject matter should not be passed over.”
Far East Conference, 342 U.S. at 494.1 The Court goes on to explain
that agencies should get the first crack at those kinds of issues be-
cause “they are better equipped than courts by specialization, by in-
sight gained through experience, and by more flexible procedure.”
Id. And in Ricci, 409 U.S. 289, the Court offered largely prudential
reasons for applying the doctrine rather than addressing whether
the relevant statutory scheme required first resort to the agency.
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
my view) applies the exclusive-agency-jurisdiction, statutory-construction-
based form of the doctrine. See id. (holding that arguments in the context of an
antitrust claim about the reasonableness of rates fell “within the exclusive pre-
liminary jurisdiction of the Shipping Board” based on “[t]he scope and eviden[t]
purpose of the Shipping Act, as in the case of the Interstate Commerce Act”).
8
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 question was neces-
sary 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 dispute by the
Commission promises to be of material aid in resolving the immun-
ity question” that was part of the antitrust case). Over time, lower
federal courts have incorporated this and similar agency-expertise-
focused language into a variety of multi-factor balancing tests for
applying the doctrine. See Winters at 568 (collecting circuit tests).
2. Teasing out these two different forms the doctrine of primary
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,
9
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
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.
10
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
“[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
11
East Conference, 342 U.S. at 574. 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 aspect
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)).
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
12
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”
(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)).
13
(c) 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
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
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 Ctrs., 290 Ga. 628, 629 (724 SE2d 386)
(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.)”).
14
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 W.
& A.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 Serv., Inc. v. Snider,
197 Ga. App. 377 (398 SE2d 430) (1990). And in Central Georgia
Railway Co. v. Culpepper, 209 Ga. 844 (76 SE2d 482) (1953), we ad-
dressed whether the National Railroad Adjustment Board had “ex-
clusive 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,
15
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
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”
16
that could prevent the further litigation of the case from “undercut-
ting the rate structure approved by the Commission.” Id. at 824. Cit-
ing federal Court of Appeals decisions, the Court described this doc-
trine as a “prudential” and “discretionary” doctrine that would allow
the trial court to “permit the Commission to construe its own or-
ders.” Id. at 824. The Court then explained the doctrine’s operation:
when “an agency order is at issue in a judicially cognizable dispute,
the trial court properly may refer especially difficult or technical is-
sues within the specialized competence of an administrative agency
to the agency itself,” as long as “the disputed words ‘are used in a
peculiar or technical sense, and where extrinsic evidence is neces-
sary to determine their meaning or proper application, so that the
inquiry is essentially one of fact and of discretion in technical mat-
ters.’” 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 tech-
nical that it should refer them to the Commission under the doctrine
of primary jurisdiction. See id. at 826.
17
This passage in Cazier sounds very much like the prudential
strain of the doctrine of primary jurisdiction that federal courts have
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
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.” Id. at 826. See Abilene Cotton Oil,
204 U.S. at 440-441 (relying on the potential for conflicting rulings in conclud-
ing that the Interstate Commerce Act required courts to refer questions bear-
ing on the reasonableness of rates to the ICC).
18
that the prudential form of the doctrine is not properly a part of
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.
19