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 of Assistant U.S. Attorney for the Eastern District of North 

Carolina satisfies the residency requirement of 28 U.S.C. § 545(a) (1976). 

That 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 of the District of Columbia and the Southern 

District of New York may reside within 20 miles thereof.

The U.S. Attorney for the Eastern District of North Carolina wishes to 

appoint Mr. A, who currently resides in the Middle District of North 

Carolina, as an Assistant U.S. Attorney for the Eastern District of 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 North Carolina.

According to the information provided to us, A is willing to establish a 

residence in the Eastern District to avoid conflict with the residency requirement. He plans to rent an apartment 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 Wake County 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.

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1975). The meaning of the term varies depending on its context and must 

be interpreted in light of 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 of the purpose of the statute in 

which such term is used; ‘reside’ is a term whose statutory meaning depends upon the context and purpose of the statute in which 

it occurs.

It appears from the legislative history that the purpose of the residency requirement was to ensure the availability of the attorneys. The residency requirement for Assistant U.S. Attorneys first was enacted in 1896, in a 

general appropriation measure. Legislative, Executive and Judicial Expenses 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 of the bill amending the statute to except the District of Columbia, congressional concern focused on the attorneys’ physical presence 

within the district, not on legal domicile. Representative McLaughlin, 

speaking in favor of the bill, commented that the residency provision requires 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 Re c o r d 3269 (1941). Representative South, opposing 

the bill, stated, “ it will be to the best interest of the people whom they 

serve to require them to live among such people during their tenure o f office.” Id. It was suggested that other metropolitan areas might experience 

problems similar to those of New York and the District of Columbia, but 

no additional exceptions were made.

The prior law and revision note appearing in the United States Code 

under a precursor of § 545(a) stated that “ the residence requirement of 

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 of § 545(a) would be satisfied 

if Mr. A rents an apartment 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

Deputy Assistant Attorney General

Office o f Legal Counsel

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