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Residence Requirement for Assistant United 

States Attorneys Under 28 U.S.C. § 545(a)

Under 28 U.S.C. § 545(a), Assistant United States Attorneys must physically reside in or 

within 25 miles of the district that they serve.

November 20, 2012

MEMORANDUM OPINION FOR THE GENERAL COUNSEL 

EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS

Federal law provides that “[e]ach assistant United States attorney shall 

reside in the district for which he or she is appointed or within 25 miles” 

of that district. 28 U.S.C. § 545(a) (2006). In 1979, we interpreted the 

phrase “shall reside” to require the “physical presence” of Assistant 

United States Attorneys (“AUSAs”), reasoning that the ordinary meaning 

of the word “residence” as well as the legislative history established 

Congress’s intent to regulate where AUSAs could physically live while 

serving their districts. Assistant U.S. Attorney—Residence Requirement 

(28 U.S.C. § 545), 3 Op. O.L.C. 360 (1979) (“1979 Opinion”). You asked 

us to revisit the 1979 Opinion’s reading of section 545(a) in light of 

advances in technology that would make it possible for AUSAs to work 

remotely while living outside their districts.1 Specifically, you asked 

whether maintaining a “virtual presence” in a district through a telework 

arrangement could satisfy the section 545(a) residence requirement. 

Although we appreciate that telework capabilities now allow some 

AUSAs to perform their duties even while stationed more than 25 miles 

from their districts, we believe that the 1979 Opinion correctly interpreted 

the statute and that AUSAs must physically reside in or within 25 miles of 

the district that they serve.2

 1 See Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, 

from Jay Macklin, General Counsel, Executive Office for United States Attorneys (Oct. 1, 

2012) (“EOUSA Letter”).

2 The 1979 Opinion interpreted an earlier version of the statute, which required all 

AUSAs, save those serving in the District of Columbia and the Southern District of New 

York, to reside within their appointing district. See 28 U.S.C. § 545(a) (1976). The 

current statute does not except AUSAs appointed for the District of Columbia and the 

Southern District of New York from the residence requirement, but rather allows all 

AUSAs, regardless of district, to live “in . . . or within 25 miles” of the district they 
36 Op. O.L.C. 237 (2012)

238

I.

Section 545(a) states in its entirety:

Each United States attorney shall reside in the district for which 

he is appointed, except that these officers of the District of Columbia, the Southern District of New York, and the Eastern District of 

New York may reside within 20 miles thereof. Each assistant United 

States attorney shall reside in the district for which he or she is appointed or within 25 miles thereof. The provisions of this subsection 

shall not apply to any United States attorney or assistant United 

States attorney appointed for the Northern Mariana Islands who at 

the same time is serving in the same capacity in another district. Pursuant to an order from the Attorney General or his designee, a United States attorney or an assistant United States attorney may be assigned dual or additional responsibilities that exempt such officer 

from the residency requirement in this subsection for a specific period as established by the order and subject to renewal.

The text indicates, in a number of ways, that Congress intended section 

545(a) to impose a physical residence requirement. To start, the statute 

focuses on where AUSAs (and U.S. Attorneys) must “reside”—a word 

that generally connotes physically living in a particular place. See Webster’s Third New International Dictionary 1931 (1993) (to reside is “to 

dwell permanently or continuously: have a settled abode for a time: have 

one’s residence or domicile”); Random House Dictionary of the English 

Language 1648 (1987) (to reside is “to dwell permanently or for a considerable time”); see also Black’s Law Dictionary 1423 (9th ed. 2009) (defining residence as “[t]he act or fact of living in a given place for some 

time”; “[t]he place where one actually lives, as distinguished from a 

domicile”; and “bodily presence as an inhabitant in a given place”).

Beyond the use of the word “reside,” the way the statute marks the 

bounds of the residence requirement also indicates that Congress intended 

to regulate physical presence. AUSAs must reside in “or within 25 miles” 

of the district they serve, and U.S. Attorneys for D.C. and for New York’s 

 

serve. 28 U.S.C. § 545(a) (2006). Despite this change, the statute’s key phrase—which 

restricts where AUSAs “shall reside”—has remained constant, and the 1979 Opinion’s 

analysis is therefore relevant to the amended statute. 
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239

Southern and Eastern Districts may live “within 20 miles” of their district.

28 U.S.C. § 545(a). By framing the residence requirements in terms of 

permissible geographic ranges, Congress indicated that it was using the 

phrase “shall reside” to specify where these federal attorneys must physically dwell.

Other parts of section 545(a) reinforce this understanding of the residence requirement. The statute does not apply to federal attorneys “appointed for the Northern Mariana Islands who at the same time [are] 

serving in the same capacity in another district.” Id. Nor does it reach 

anyone to whom the Attorney General assigns “dual or additional responsibilities that exempt such officer from the residency requirement . . . for a 

specific period.” Id.3 If U.S. Attorneys and AUSAs could satisfy the 

requirements of section 545(a) by maintaining a virtual presence in one 

district while residing in another, these exceptions for those that take on 

dual roles in different districts would not be necessary. See Corley v. 

United States, 556 U.S. 303, 314 (2009) (A statute “should be construed 

so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (internal quotation marks 

omitted)). Based on this and the other textual indications discussed above, 

we conclude that section 545(a) requires that AUSAs physically reside in 

or within 25 miles of the district they serve.4

 

3 Since 2008, Congress has prohibited the use of funds “for the salary, benefits, or expenses of any United States Attorney assigned dual or additional responsibilities by the 

Attorney General . . . that exempt that United States Attorney from the residency requirements of 28 U.S.C. 545,” effectively rendering the dual-responsibilities exception inapplicable to U.S. Attorneys. Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, 

div. B, § 215, 121 Stat. 1844, 1915 (2007); see also Consolidated and Further Continuing 

Appropriations Act, 2012, Pub. L. No. 112-55, div. B, § 214, 125 Stat. 552, 620 (2011) 

(same). By preventing U.S. Attorneys from taking on dual responsibilities that would take 

them away from their home districts, this appropriations rider presumes that section 

545(a) regulates physical presence and further reinforces our reading of the statute.

4 We would not read the residence requirement to apply to special attorneys appointed 

under section 543 of title 28 of the U.S. Code, which authorizes “[t]he Attorney General 

[to] appoint attorneys to assist United States attorneys when the public interest so requires.” Even though special attorneys “assist” U.S. Attorneys, they are not the “assistant 

United States attorney[s]” to whom section 545(a) refers. Rather, section 545(a)’s use of 

the term “assistant United States attorneys” appears to be a reference only to attorneys 

appointed under section 542, which provides that “[t]he Attorney General may appoint 

one or more assistant United States attorneys.” (Emphasis added.) We draw support for 
36 Op. O.L.C. 237 (2012)

240

II.

The legislative history confirms that section 545(a) requires physical 

residence. In 1896, when Congress first considered whether to authorize 

the appointment of AUSAs (then “assistant district attorneys”), the draft 

language did not include a residence requirement. Representative Johnson asked the bill sponsor whether assistants would need to be “actual 

residents of the district” for which they are appointed. 28 Cong. Rec. 

2464 (1896). When the sponsor said no, Representative Johnson offered 

an ultimately successful amendment “for the purpose of imposing a 

restriction in that regard,” commenting that he did “not think that there 

ought to be anybody sent out to fill such positions in the State or Territory unless he lives there.” Id.; see also Act of May 28, 1896, ch. 252, 29 

Stat. 140, 181 (providing that assistant district attorneys “must be residents of the district for which they are appointed”).

Floor statements from the debates on subsequent amendments to the 

statute similarly indicate that Congress has long understood the statute 

to regulate physical presence. As your letter notes, EOUSA Letter at 2, 

the 1979 Opinion relied in part on two statements made during the 1941 

debate on amending the statute, the first of which explains that the thencurrent version of the statute required attorneys to “move into the District and live in the District,” and the second of which states that it was 

in “the best interest of the people whom [AUSAs] serve to require 

[AUSAs] to live among such people during their tenure of office.” See 

1979 Opinion, 3 Op. O.L.C. at 361; 87 Cong. Rec. 3269 (1941) (statements of Reps. McLaughlin and South). And when Congress considered 

another amendment in 1979, the sponsor described section 545(a) as “a 

codification of the policy that law enforcement officials should reside in 

the same community in which they enforce the law.” 125 Cong. Rec. 

4164 (1979) (statement of Rep. DeConcini). We have found nothing in 

the legislative history to suggest that Congress has ever understood the 

residence requirement as anything other than a limit on where U.S. 

 

that reading from floor statements made by the sponsor of the original AUSA residence 

requirement. When asked whether the residence requirement would apply to “a special 

assistant,” the amendment’s sponsor responded that the restriction was “only for regular 

deputies, not the special deputies,” and that the Attorney General “has a right to employ 

special deputies at any time.” 28 Cong. Rec. 2465 (1896) (statement of Rep. Johnson).
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241

Attorneys and AUSAs may physically live, and we do not think the 

technological advances that make telework an option for some AUSAs 

undermine the current relevance of Congress’s stated purpose.

III.

We recognize that permitting remote work arrangements like the one 

you describe in your letter (through which an appellate attorney sought to 

telework for two years while his spouse completed an overseas assignment) could assist the Department’s retention efforts and alleviate potential difficulties arising from the hiring freeze.* And we are mindful that 

current technology could “ensure the availability” of at least some attorneys—and thereby achieve one of the important “purpose[s] of the residency requirement”—in ways that were not contemplated when Congress 

passed the first residence requirement in 1896, or even when we wrote the 

1979 Opinion cited above. See 1979 Opinion, 3 Op. O.L.C. at 361. We 

nevertheless believe that the text and legislative history require us to 

adhere to the 1979 Opinion’s analysis—an analysis that is consistent with 

other past readings of both section 545(a) and a similar residence requirement for circuit judges. See Memorandum for Philip H. Modlin, 

Director, Executive Office for United States Attorneys, from Mary C. 

Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, 

Residence Requirement for U.S. Attorneys at 1 (July 11, 1974) (“Lawton 

Memo”) (considering section 545(a) and suggesting that “it is accepted 

almost without question that a public employee can be required to live in 

the district in which he works”); Memorandum for Dennis Mullins, Deputy Assistant Attorney General, Office of Legal Policy, from Theodore B. 

Olson, Assistant Attorney General, Office of Legal Counsel, Re: Residency Requirements for Circuit Judges at 4 (Sept. 26, 1984) (advising that a 

judicial nominee “establish his physical presence in California” to comply 

with the requirement under 28 U.S.C. § 44(c) that a circuit judge “be a 

resident of the circuit for which appointed”); E-mail for Kurt Didier from 

 

* Editor’s Note: The Department of Justice instituted a hiring freeze from 2011 to 

2014 in response to budgetary problems. See Dep’t of Justice, Press Release, Attorney 

General Holder Announces Justice Department to Lift Hiring Freeze (Feb. 10, 2014), 

https://www.justice.gov/opa/pr/attorney-general-holder-announces-justice-departmentlift-hiring-freeze.
36 Op. O.L.C. 237 (2012)

242

Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal 

Counsel, Re: US Atty Residency Req’t (Aug. 2, 2002, 10:46 AM) (adhering to the 1979 Opinion’s interpretation of “reside” to conclude that 

“presence in the district seems to meet the statutory purpose”). 

This is not to say that a U.S. Attorney could never approve an 

AUSA’s request to telework away from the district in which he or she 

serves (and outside the 25-mile radius that the statute permits) for a 

reasonable period of time, subject to any requirements of the Department’s Telework Policy. See DOJ Policy Statement 1200.01 (approved 

on July 20, 2012), http://www.justice.gov/jmd/hr/doj1200-01.pdf. The 

residence requirement, we have said, “contemplates a home in which 

[AUSAs] are present most of the time,” not all of the time. Lawton 

Memo at 1. So while we do not think that an AUSA telecommuting 

overseas for a period of two years could fairly be considered “present 

most of the time” in his home district, other, short-term telework arrangements would be permissible under the statute, as long as the AUSA 

usually has a physical presence in or within 25 miles of the appointing 

district.

VIRGINIA A. SEITZ

Assistant Attorney General

Office of Legal Counsel