Case Information

*1 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 e o n U l m a n D eputy Assistant A ttorney General Office o f Legal Counsel 361