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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