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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, 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 (October 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 D.C. and SDNY from the residence requirement, but rather allows all AUSAs, regardless 

of district, to live “in . . . or within 25 miles” of the district they 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. 
Opinions of the Office of Legal Counsel in Volume 36 

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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 southern and eastern 

districts may live “within 20 miles” of their district. Id. 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 
Residence Requirement for AUSAs Under 28 U.S.C. § 545(a) 

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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 and citation 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

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 29 Stat. 181 (1896) (providing that assistant district attorneys 

“must be residents of the district for which they are appointed”). 

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 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 (2007); see also Pub. L. No. 112-55 (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 chapter 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.” We draw support for 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 Representative Johnson). 
Opinions of the Office of Legal Counsel in Volume 36 

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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 then-current 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] service 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 Representatives 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 Representative 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. Attorneys and AUSAs 

may physically live, and we do not think the technological advances that make 

telework an option for some AUSAs undermines 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 (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 (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 
Residence Requirement for AUSAs Under 28 U.S.C. § 545(a) 

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judge “be a resident of the circuit for which appointed”); E-mail for Kurt Didler 

from Dan Koffsky, Re: US Atty Residency Req’t (Aug. 2, 2002) (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 Jul. 20, 2012) (available at http://www.justice.gov/jmd/hr/

doj1200-01.pdf, last visited Nov. 19, 2012). The residence requirement, we have 

said, “contemplates a home in which [AUSAs] are present most of the time,” not 

all of the time. See Lawton Memo. 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