Residence Requirement for Assistant U.S. Attorneys

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.

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