最近(2010/2011) 美國 行政判例의 動向 및 分析 硏究

This article analyzes the most important administrative law cases in the 2010 term of the U.S. Supreme Court. They are selected on the base of citation number of law review and westlaw. Mayo Foundation discussed whether Chevron deference could be entitled to the interpretation of Federal Insurance Contributions Act. This case recognized that as the statute explicitly authorizes to make rules to enforce, Chevron deference is enough to be given pursuant to Mead. In Talk America, the court considered whether an incumbent provider of local telephone service makes certain transmission facilities available to the competitors at cost-based rates. It gave Auer deference to the interpretation of Federal Communication Commission’s own regulation. Humane Society dealt with the decision of National Marine Fisheries Service, which authorized some States to kill pinnipeds that were preying on endangered salmonid. The court vacated the decision, on the reason that it was arbitrary and capricious, since the agency didn't give adequate explanation for the inconsistency between the previous and present environmental assessment. Johnson affirmed the administrative law judge's decision, saying that the substantial evidence supported the decision to discount the opinion of one of claimant's treating physicians. Sacora dealt with Skidmore deference which is less deferential than Chevron deference. The court declared that the policies by which Bureau of Prison placed inmates in community correctional facilities reasonably implemented the Second Chance Act. In Arkema, the court held that final rule honoring only intercompany transfers of baseline allowances and disallowing permanent baseline changes resulting from inter-pollutant trade constituted impermissible retroactive rule. Jackson dealt with whether the Comprehensive Environmental Response, Compensation, and Liability Act prescribing unilateral administrative orders violated due process. The court made clear that statues imposing fines-even enormous fines-on noncomplying parties may satisfy due process if such fines are subject to a good faith or reasonable grounds defense. Milner was about the Freedom of Information Act exemption which protected from disclosure material related to the internal personnel rules and practices of an agency. The court declared that it only encompassed records relating employee relations and human resources issues, and did not encompass explosive maps and data of the Navy documents. All these analyses give some insight into Korean administrative law on reviewability and standard for the review of the agency action. Korean court should review the policy issues to the extent that the Constitutional Court review them and scrutinize narrowly the notice and comment procedure.