Residence Requirement for Assistant U.S. Attorneys ( 1979 )

September 12, 1979
79-67 MEMORANDUM OPINION FOR THE ACTING
DIRECTOR, EXECUTIVE OFFICE FOR U.S.
ATTORNEYS
Assistant U.S. Attorney—Residence Requirement
(28 U.S.C. § 545)
Your Office requested our opinion whether a prospective appointee to
the position o f Assistant U.S. A ttorney for the Eastern District o f North
Carolina satisfies the residency requirement o f 28 U .S.C . § 545(a) (1976).
T hat section provides:
Each United States attorney and assistant United States attorney
shall reside in the district for which he is appointed, except that
these officers o f the District o f Columbia and the Southern
District o f New York may reside within 20 miles thereof.
The U.S. A ttorney for the Eastern District o f North Carolina wishes to
appoint Mr. A, who currently resides in the Middle District o f North
Carolina, as an Assistant U.S. A ttorney for the Eastern District o f North
Carolina. It would be a hardship for A ’s family to move to the Eastern
District because his wife is completing her undergraduate degree at a
university in N orth Carolina.
According to the inform ation provided to us, A is willing to establish a
residence in the Eastern District to avoid conflict with the residency re­
quirem ent. He plans to rent an apartm ent at which he usually will be
available during the workweek. His family would relocate when his wife
completes her undergraduate work. A is also willing to change his voting
registration to W ake C ounty in the Eastern District and take other
measures necessary to satisfy the residency requirement.
The term “ residence” generally refers only to physical presence, not to
legal domicile or voting residence. Weible v. United States, 244 F. (2d)
158, 163 (9th Cir. 1957); In Re National Discount Corp., 196 F. Supp.
766, 769 (W .D .S.C . 1961). A person can have only one domicile, but may
have more than one residence or no residence at all. Corwin Consultants,
Inc. v. Interpublic Group o f Companies, Inc., 512 F. (2d) 605, 610 (2d Cir.
360
1975). The meaning o f the term varies depending on its context and must
be interpreted in light o f the statute in which it appears. See, Guessefeldt
v. McGrath, 342 U.S. 308, 311-12 (1951). In In Re National Discount
Corp., supra, 1% F. Supp. at 769, the court stated:
In statutory construction, it is settled that ‘reside’ is an elastic
term to be interpreted in the light o f the purpose o f the statute in
which such term is used; ‘reside’ is a term whose statutory mean­
ing depends upon the context and purpose o f the statute in which
it occurs.
It appears from the legislative history that the purpose o f the residency re­
quirement was to ensure the availability o f the attorneys. The residency re­
quirement for Assistant U.S. Attorneys first was enacted in 1896, in a
general appropriation measure. Legislative, Executive and Judicial Ex­
penses Appropriations Act, ch. 252, § 8, 29 Stat. 181 (1896). Residency
has been a requirement since that time, although exceptions were provided
for the Southern District o f New York and the District o f Columbia. In
the debates o f the bill amending the statute to except the District o f C o­
lumbia, congressional concern focused on the attorneys’ physical presence
within the district, not on legal domicile. Representative McLaughlin,
speaking in favor o f the bill, commented that the residency provision re­
quires the attorneys to “ move into” the district and “ live in” the district.
87 C o n g r e s s i o n a l R e c o r d 3269 (1941). Representative South, opposing
the bill, stated, “ it will be to the best interest o f the people whom they
serve to require them to live among such people during their tenure o f o f­
fice.” Id. It was suggested that other m etropolitan areas might experience
problems similar to those o f New York and the District o f Columbia, but
no additional exceptions were made.
The prior law and revision note appearing in the United States Code
under a precursor o f § 545(a) stated that “ the residence requirement o f
this section has no relation to domicile or voting residence * * * .” See
28 U.S.C. § 545 (1976), prior law and revision note.
In our opinion, the residency requirement o f § 545(a) would be satisfied
if Mr. A rents an apartm ent in the Eastern District and lives there during
the workweek. It is not legally necessary that he change his voting
registration.
L eon U lm an
D eputy Assistant A ttorney General
Office o f Legal Counsel
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