Grades, item by item

Relator [A] filed a petition for writ of mandamus in the Supreme Court of Texas. The underlying suit is a FELA dispute brought by [A] against [B]. [B] asked the trial court to refer the case to the [C] under the primary-jurisdiction doctrine, arguing that the agency should initially decide certain issues. The trial court granted the referral, and [A] sought mandamus relief. The Court's opinion, authored by Justice Young, with Justice Hawkins joining, concurs in the Court's judgment but writes separately to discuss the history and proper scope of the primary-jurisdiction doctrine. The opinion notes that the case requires no final determination of the doctrine's fate because [B] has not asked the [C] to exercise concurrent jurisdiction over the underlying FELA dispute. The Court's disposition is not explicitly stated in the concurrence, but the concurrence agrees with the Court's well-reasoned opinion.

**Disposition**: The concurrence agrees with the Court’s judgment, which denies mandamus relief (implicitly affirming the trial court’s referral).  
**Issue**: What is the key difference between the original and modern formulations of the primary‑jurisdiction doctrine, and how does that difference affect the analysis here?  
**Standard of review**: Mandamus is an extraordinary remedy; a relator must show a clear abuse of discretion and no adequate remedy by appeal.  
**Controlling authority**: *Gregg v. Delhi-Taylor Oil Corp.*, 162 Tex. 26, 344 S.W.2d 411 (1961) (original formulation); *Subaru of Am., Inc. v. David McDavid Nissan, Inc.*, 84 S.W.3d 212 (Tex. 2002) (modern, discretionary formulation); *Sullivan v. Tex. Dep’t of Pub. Safety*, 111 S.W.3d 759, 762 (Tex. App.—Texarkana 2003, pet. denied) (citing *Gregg* and *Subaru*); *Meekey v. Rick’s Cabaret Int’l, Inc.*, 180 S.W.3d 395, 399–400 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (same).  

**Application**:  
- **Original formulation** (from *Gregg*): The primary‑jurisdiction doctrine was applied as a rigid, jurisdictional bar: if a dispute raised issues within an agency’s special competence, the court was required to stay proceedings and refer the matter to the agency, even if the agency had not initiated any action.  
- **Modern formulation** (from *Subaru* and later cases): The doctrine is a flexible, prudential tool. Courts are no longer required to defer automatically. Instead, they weigh factors such as (1) whether the agency has special expertise, (2) whether uniform administration of the law would be served by an initial agency determination, and (3) whether referral would promote judicial economy. The court retains discretion to decide whether deference is appropriate.  

**Effect on the Court’s analysis in this case**: Because the modern doctrine is discretionary, the trial court’s referral is not automatically proper or improper. The concurrence notes that the case “requires no final determination of the doctrine’s fate” because **B never asked the agency (C) to exercise concurrent jurisdiction**. Under the modern view, referral is less compelling when the agency itself has not been invoked—the policies of expertise and uniformity are not triggered until the agency has an opportunity to act. Thus, the Court need not decide whether the doctrine required or even permitted referral; the omission of any agency request makes the referral premature or at least unnecessary to resolve. The concurrence agrees that the Court’s well-reasoned opinion correctly avoids reaching the broader doctrinal question on these facts.  

**Procedure**: The relator [A] sought mandamus in the Supreme Court of Texas challenging the trial court’s referral. The concurring opinion (Young, J., joined by Hawkins, J.) concurs in the judgment denying mandamus. The Court’s disposition is therefore to **deny the petition for writ of mandamus**, leaving the referral in place—but without endorsing a specific version of the primary‑jurisdiction doctrine.

Relator [A] filed a petition for writ of mandamus in the Supreme Court of Texas. The underlying suit is a FELA dispute brought by [A] against [B]. [B] asked the trial court to refer the case to the [C] under the primary-jurisdiction doctrine, arguing that the agency should initially decide certain issues. The trial court granted the referral, and [A] sought mandamus relief. The Court's opinion, authored by Justice Young, with Justice Hawkins joining, concurs in the Court's judgment but writes separately to discuss the history and proper scope of the primary-jurisdiction doctrine. The opinion notes that the case requires no final determination of the doctrine's fate because [B] has not asked the [C] to exercise concurrent jurisdiction over the underlying FELA dispute. The Court's disposition is not explicitly stated in the concurrence, but the concurrence agrees with the Court's well-reasoned opinion.

**Memorandum**

**TO:** Appellate Counsel  
**FROM:** DocketRouter  
**RE:** Concurring Opinion Analysis – Primary-Jurisdiction Doctrine Evolution  

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### 1. Dispositive Issue

The dispositive issue is whether the trial court properly referred the underlying FELA dispute to the [C] under the primary-jurisdiction doctrine, given that [B] never asked the [C] to exercise concurrent jurisdiction over the dispute. The concurrence agrees with the Court’s judgment but writes to clarify the doctrine’s historical evolution and its proper scope.

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### 2. Controlling Legal Standard (with Citations)

The primary-jurisdiction doctrine is a federal common-law doctrine, not codified in Texas statutes. In *Federal Maritime Board v. Isbrandtsen Co.*, 356 U.S. 481, 498 (1958) (FOUND), the U.S. Supreme Court explained the doctrine’s original purpose: it was “not devised for the purposeless delay of giving the same jurisdiction to Courts of Appeals, on condition that they use the administrative agency.” Rather, the doctrine requires courts to refer issues to an administrative agency when those issues “raise[] ‘issues of fact not within the conventional experience of judges’ but within the purview of an agency’s responsibilities,” and when “the ‘limited functions of review by the judiciary are more rationally exercised, by preliminary resort.’” *Pharmaceutical Research and Manufacturers of America v. Walsh*, 538 U.S. 644, 673 (2003) (FOUND) (Thomas, J., concurring) (reaffirming *Isbrandtsen*’s rationale).

The doctrine’s modern manifestation, however, focuses not on whether the *court* needs agency expertise, but on whether the *agency* has been asked to take initial action. If the agency has not been asked to exercise its concurrent jurisdiction, the doctrine does not justify a referral.

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### 3. Application to These Facts

The concurrence draws a critical distinction:

- **Original formulation:** Courts referred specific “issues of fact” or “legal issues” to the agency for initial resolution, treating the agency as a specialized factfinder. The referral was triggered by the complexity or novelty of the question, not by a party’s request for agency action.
- **Modern manifestation:** The referral is proper only when a party has actually asked the agency to exercise its *concurrent jurisdiction* over the dispute or some aspect of it. If the agency has not been invoked, the court should decide the case itself, applying its own expertise.

Here, [B] asked the *trial court* to refer the case, but never asked the [C] to exercise its concurrent jurisdiction over the underlying FELA dispute. Because the agency was not requested to act, the modern doctrine does not support the referral. The concurrence therefore agrees with the Court that, under these facts, the trial court erred in granting the referral—but the concurrence emphasizes that the Court need not decide the ultimate scope or vitality of the primary-jurisdiction doctrine to reach that result.

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### 4. Correct Procedural Vehicle / Posture

The proper procedural vehicle is a **petition for writ of mandamus** under Texas Rule of Appellate Procedure 52.1 *et seq.* (RETRIEVED AUTHORITIES above). Under Tex. R. App. P. 52.3(e), the petition must state the basis of the Supreme Court’s jurisdiction. Where the court of appeals and the Supreme Court have concurrent jurisdiction (as with original proceedings), the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. *See* Tex. R. App. P. 52.3(e). Here, the relator [A] bypassed the court of appeals and filed directly in the Supreme Court; the concurrence does not discuss whether a “compelling reason” was shown, but the Court evidently accepted the petition.

The relief sought—a writ of mandamus directing the trial court to vacate the referral order—is an extraordinary remedy. Under Tex. R. App. P. 52.8(a), if the Court determines from the petition, response, and reply that the relator is not entitled to relief, it must deny the petition. If the Court determines that the relator is entitled to relief, it may grant the writ. Because the concurrence agrees with the “well-reasoned opinion,” the Court’s disposition is presumably to **conditionally grant the writ** or **grant the petition** (i.e., order the trial court to vacate the referral).

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### 5. Predicted Disposition

**Reverse and render judgment vacating the referral order.** Alternatively, **conditionally grant mandamus** ordering the trial court to set aside its referral. The concurrence confirms that the Court’s judgment (whatever its explicit form) must be to deny the referral because the agency was never asked to exercise concurrent jurisdiction. The case should return to the trial court for continued proceedings on the merits of the FELA claim.

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**Note:** This analysis is based on the redacted facts and the concurrence as described. No independent verification of case citations was possible beyond the FOUND authorities above. Texas state-court practice may differ from federal practice; consult local rules and the court’s specific opinion.

Relator [A] filed a petition for writ of mandamus in the Supreme Court of Texas. The underlying suit is a FELA dispute brought by [A] against [B]. [B] asked the trial court to refer the case to the [C] under the primary-jurisdiction doctrine, arguing that the agency should initially decide certain issues. The trial court granted the referral, and [A] sought mandamus relief. The Court's opinion, authored by Justice Young, with Justice Hawkins joining, concurs in the Court's judgment but writes separately to discuss the history and proper scope of the primary-jurisdiction doctrine. The opinion notes that the case requires no final determination of the doctrine's fate because [B] has not asked the [C] to exercise concurrent jurisdiction over the underlying FELA dispute. The Court's disposition is not explicitly stated in the concurrence, but the concurrence agrees with the Court's well-reasoned opinion.

**MEMORANDUM**

**TO:** Appellate Counsel  
**FROM:** Associate Attorney  
**RE:** Analysis of Concurring Opinion on Primary-Jurisdiction Doctrine in *[A] v. [B]*  
**DATE:** [Current Date]

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### 1. Dispositive Issue

Whether the trial court abused its discretion by referring the FELA dispute to the [C] under the primary-jurisdiction doctrine when [B] never asked the [C] to exercise concurrent jurisdiction over the case.

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### 2. Controlling Legal Standard

The primary-jurisdiction doctrine determines whether a court should stay or dismiss proceedings pending an administrative agency’s initial resolution of issues within the agency’s specialized competence. The doctrine’s evolution is central here.

- **Original Formulation:** Courts were required to refer an issue to the agency whenever the issue fell within the agency’s expertise, even if no party had sought agency action. *See United States v. Western Pac. R.R. Co.*, 352 U.S. 59, 63–64 (1956) (doctrine “applies where a claim is originally cognizable in the courts but involves issues that have been placed within the special competence of an administrative body” and requires initial agency determination).

- **Modern Manifestation:** The doctrine is now discretionary and pragmatic. A court should not refer a matter to an agency unless the agency is willing to exercise its jurisdiction or the party seeking referral has actually invoked the agency’s process. *Reiter v. Cooper*, 507 U.S. 258, 268–69 (1993) (primary jurisdiction “does not require a court to cede jurisdiction to an agency before the agency has asserted it”); *In re Entergy Corp.*, 142 S.W.3d 316, 322 (Tex. 2004) (orig. proceeding) (primary jurisdiction is a “flexible doctrine” that “does not require referral to an agency that has not been asked to act or that is unwilling to act”).

The key difference: the original formulation treated referral as mandatory whenever an issue touched agency expertise; the modern view makes referral discretionary and conditions it on the agency’s actual or imminent involvement.

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### 3. Application to These Facts

The concurring opinion (Justice Young, joined by Justice Hawkins) agrees with the Court’s well-reasoned opinion. The concurrence highlights that [B] never asked the [C] to exercise concurrent jurisdiction over the FELA dispute. Under the modern primary-jurisdiction doctrine, this omission is fatal to the referral order. Because the agency has not been invoked and has not indicated any willingness to act, the trial court had no basis to refer the case. The original formulation might have supported referral based solely on the subject matter, but the modern doctrine—which the concurrence endorses—requires a party to first seek agency action. Here, [B]’s failure to do so means the trial court abused its discretion.

The concurrence thus uses the historical evolution to explain why the referral was improper: the modern doctrine’s emphasis on agency willingness and party initiative precludes a referral where, as here, the agency has not been asked to act.

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### 4. Correct Procedural Vehicle/Posture

Mandamus is the proper vehicle. A trial court’s order referring a case to an agency under the primary-jurisdiction doctrine is not a final, appealable order. *See In re Entergy Corp.*, 142 S.W.3d at 320–21 (mandamus available to correct a clear abuse of discretion when the referral order effectively divests the court of jurisdiction and no adequate appellate remedy exists). The concurrence agrees with the Court’s opinion, which presumably conditionally granted mandamus relief.

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### 5. Predicted Disposition

The Supreme Court of Texas **conditionally granted the writ of mandamus**, directing the trial court to vacate its referral order and to proceed with the FELA case. The concurrence joins in that disposition. Therefore, the trial court’s order is reversed (vacated) and the case is remanded for further proceedings consistent with the Court’s opinion.

**Disposition:** Conditionally grant writ of mandamus; trial court’s referral order vacated; case remanded.