Residence Requirement of the Federal Circuit

One of the most curious provisions in federal law is 28 U.S.C. Sec. 44(c), which states the following:

“While in active service, each circuit judge of the Federal judicial circuit . . . and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia.”

There is a residency requirement for active circuit judges in the other circuits (you have to live in the circuit), but drawing a 50 mile circle around DC for all federal circuit judges seems really silly.  First, it sharply limits who can be on that court.  Second, what’s so special about where you live when you hear (mostly) patent appeals.  And finally, why 50 miles?  Folks can easily take a train from New York to DC or live, say 60 miles away and commute.  Congress ought to consider repealing this residency rule.

UPDATE:  I wonder how this requirement could be enforced against an Article III judge.  Impeachment for Federal Circuit judges who move to New York?  Does the Chief Judge bar the person from hearing new cases until he or she moves back into the 50-mile zone?

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6 Responses

  1. Sean M. says:

    The same is true of United States Attorneys and Assistant United States Attorneys: “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.” 28 U.S.C. 545(a).

  2. Gerard Magliocca says:

    Those make more sense, in that you might want a federal prosecutor to be in the community. (Personally, though, I think that is also misguided.) A national court like the Federal Circuit, though, lacks that crucial element.

  3. Orin Kerr says:

    I would guess there are two goals. First, encouraging a collegial court: Judges who live more than 50 miles from the office are not likely to come in to the office very often. Second, lowering costs by limiting opportunities for judges to ask for second offices nearer to their homes, in the same way that circuit judges often have one office at the circuit seat and another one locally.

  4. Howard Wasserman says:

    A third reason may relate to Gerard saying this is a “national court”–We want those who are part of national institutions to be in or near the seat of the Nation. You can question whether that should be so for a court, but the logic is at least there.

  5. Gerard Magliocca says:

    I wonder if it would be constitutional to impose a similar requirement on the Justices.

  6. TJ Chiang says:

    Having clerked on the court, I think the residency requirement actually makes a lot of sense, mostly for the reasons that Orin has already mentioned. It really does make a huge difference that all the judges are in the same building. That synergy is likely to disappear without the residency requirement: Supreme Court justices are not likely to demand that they be able to set up secondary chambers in more pleasant locations such as sunny California, but circuit judges have a history of doing so.