28 U.S.C. § 543 — Special attorneys

Page 230 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 542 At present, such officers are invariably designated as ‘‘United States attorneys’’ by Federal courts and the Department of Justice. Words ‘‘The President may appoint, by and with the advice and consent of the Senate,’’ were inserted to conform section with the Constitution. See article II, section 2, clause 2. Words ‘‘including the District of Columbia’’ were omitted, because the District is made a judicial district by section 88 of this title. District of Columbia Code, 1940 ed., § 11–1001, provided for appointment of an ‘‘at- torney of the United States for the District’’ by the President, subject to Senate confirmation. Words ‘‘learned in the law’’ were omitted as unneces- sary. Such requirement is not made of United States judges and no reason appears to make a distinction re- specting United States attorneys. Parts of section 863 of title 48, U.S.C., 1940 ed., remain in said title 48. For remainder thereof, see Distribution Table. Other provisions of section 643 of such title are incorporated in sections 133, 504 [now 541 and 544], and 541 [see 561] of this title. Changes were made in phraseology. [The Historical and Revision Notes for former section 504, from which this section is partially derived, is set out under section 544 of this title.] Editorial Notes PRIOR PROVISIONS A prior section 541, acts June 25, 1948, ch. 646, 62 Stat 910; Mar. 18, 1959, Pub. L. 86–3, § 11(c), (d), 73 Stat. 9, re- lated to appointment, residence and tenure of mar- shals, prior to repeal by Pub. L. 89–554, § 8(a), and reen- actment in section 561 of this title by section 4(c) of Pub. L. 89–554. § 542. Assistant United States attorneys (a) The Attorney General may appoint one or more assistant United States attorneys in any district when the public interest so requires. (b) Each assistant United States attorney is subject to removal by the Attorney General. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 618.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large (a) ................ 28 U.S.C. 502. [None]. (b) ................ 28 U.S.C. 504(b) (2d sentence, as applicable to assistant United States attorneys). [None]. In subsection (b), the word ‘‘is’’ is substituted for ‘‘shall be’’. 1948 ACT Prior section 502.—Based on title 28, U.S.C., 1940 ed., §§ 483, 594 (May 28, 1896, ch. 252, § 8, 29 Stat. 181; July 19, 1919, ch. 24, § 1, 41 Stat. 209; Mar. 4, 1923, ch. 295, 42 Stat. 1560; June 25, 1936, ch. 804, 49 Stat. 1921). Section consolidates sections 483 and 594 of title 28, U.S.C., 1940 ed., relating to appointment of assistant United States attorneys. Words ‘‘United States attorneys’’ were substituted for ‘‘district attorneys.’’ (See reviser’s note under sec- tion 501 [now 541] of this title.) The exception of Alaska from the operation of such section 483 was omitted as covered by section 109 of title 48, U.S.C., 1940 ed., Territories and Insular Posses- sions, authorizing appointment of assistant United States attorneys in Alaska. Reference in such section 483 to ‘‘District of Colum- bia’’ was omitted. (See reviser’s note under section 501 [now 541] of this title.) The provisions of sections 483 and 594 of title 28, U.S.C., 1940 ed., requiring the judges and United States attorneys to certify or evidence in writing the neces- sity for assistant United States attorneys in their re- spective districts, and specifying that such opinion of the judge shall state to the Attorney General the facts as distinguished from conclusions, showing the neces- sity therefor, were omitted. The Attorney General, as chief law enforcement officer, is in a better position to determine such necessity. The salary provisions of such section 594 were omit- ted as covered by section 508 [now 548] of this title. Changes were made in phraseology. Editorial Notes PRIOR PROVISIONS A prior section 542, act June 25, 1948, ch. 646, 62 Stat. 911, related to appointment and tenure of deputies and assistants for United States marshals, prior to repeal by Pub. L. 89–554, § 8(a), and reenactment in section 562 of this title by section 4(c) of Pub. L. 89–554. § 543. Special attorneys (a) The Attorney General may appoint attor- neys to assist United States attorneys when the public interest so requires, including the ap- pointment of qualified tribal prosecutors and other qualified attorneys to assist in pros- ecuting Federal offenses committed in Indian country. (b) Each attorney appointed under this section is subject to removal by the Attorney General. (c) INDIAN COUNTRY.—In this section, the term ‘‘Indian country’’ has the meaning given that term in section 1151 of title 18. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 618; amended Pub. L. 111–211, title II, § 213(a)(1), July 29, 2010, 124 Stat. 2268.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large (a) ................ 28 U.S.C. 503. [None]. 5 U.S.C. 298. July 28, 1916, ch. 261, § 1 (6th par. on p. 413), 39 Stat. 413. (b) ................ 28 U.S.C. 504(b) (2d sentence, less applica- bility to as- sistant United States attor- neys). [None]. The text of former section 298 of title 5 is omitted as unnecessary. The position so authorized has not been filled in recent years, and the authority is preserved by this section and revised section 3101 of title 5, United States Code. In subsection (b), the word ‘‘is’’ is substituted for ‘‘shall be’’. 1948 ACT Prior section 503.—Based on section 312 of title 5, U.S.C., 1940 ed., Executive Departments and Govern- ment Officers and Employees (R.S. § 363). Other provisions of section 312 of title 5, U.S.C., 1940 ed., are incorporated in sections 507 [now 509 and 547] and 508 [now 548] of this title. Changes were made in phraseology. Editorial Notes PRIOR PROVISIONS A prior section 543, act June 25, 1948, ch. 646, 62 Stat. 911, related to oath of office for United States Mar- Page 231 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 545 shals, prior to repeal by Pub. L. 89–554, § 8(a), and reen- actment in section 563 of this title by section 4(c) of Pub. L. 89–554. AMENDMENTS 2010—Subsec. (a). Pub. L. 111–211, § 213(a)(1)(A), in- serted ‘‘, including the appointment of qualified tribal prosecutors and other qualified attorneys to assist in prosecuting Federal offenses committed in Indian coun- try’’ before period at end. Subsec. (c). Pub. L. 111–211, § 213(a)(1)(B), added sub- sec. (c). § 544. Oath of office Each United States attorney, assistant United States attorney, and attorney appointed under section 543 of this title, before taking office, shall take an oath to execute faithfully his du- ties. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 618.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 28 U.S.C. 504(c). [None]. 1948 ACT Prior section 504.—Based on section 315 of title 5, U.S.C., 1940 ed., Executive Departments and Govern- ment Officers and Employees, title 28, U.S.C., 1940 ed., § 482, and sections 643 and 863 of title 48, U.S.C., 1940 ed., Territories and Insular Possessions (R.S. §§ 366, 769; June 24, 1898, ch. 495, § 1, 30 Stat. 487; Apr. 12, 1900, ch. 191, § 34, 31 Stat. 85; Apr. 30, 1900, ch. 339, § 86, 31 Stat. 158; Mar. 3, 1909, ch. 269, § 1, 35 Stat. 838; Jan. 7, 1913, ch. 6, 37 Stat. 648; Mar. 2, 1917, ch. 145, § 41, 39 Stat. 965; Mar. 4, 1921, ch. 161, § 1, 41 Stat. 1412; July 9, 1921, ch. 42, § 313, 42 Stat. 119; Feb. 12, 1925, ch. 220, 43 Stat. 890; Apr. 17, 1930, ch. 174, 46 Stat. 170; Mar. 26, 1938, ch. 51, § 2, 52 Stat. 118). Section consolidates parts of sections 315 of title 5, U.S.C., 1940 ed., and 643 and 863 of title 48, both U.S.C., 1940 ed., with section 482 of title 28, U.S.C., 1940 ed. It is recommended that said section 315 be amended so as to omit those provisions relating to special attorneys to assist ‘‘district attorneys’’ which were used as part of the basis for this section, as other parts of said sec- tion 315, relating to special assistants to the Attorney General, and to foreign counsel, are to remain in title 5. Words ‘‘United States attorney’’ were substituted for district attorney, and reference to District of Columbia was omitted. (See reviser’s note under section 501 [now 541] of this title.) Reference to the territories in said section 482, was also omitted as covered by provisions of title 48, U.S.C., 1940 ed., Territories and Insular Possessions. See sec- tions 109 and 112 of such title applicable to United States attorney in Alaska, and 1353 applicable in the Canal Zone, and 1405y applicable in the Virgin Islands. The provision as to the tenure of the assistant United States attorneys and special attorneys is new. Existing law contains no provision as to tenure or removal of such officials. While the Supreme Court has held that the power of removal of executive officials is incident to the power of appointment, this section expressly provides for removal. See Meyers v. United States, 1926 (47 S.Ct. 21, 272 U.S. 52, 71 L.Ed. 160). Said section 315 contained a provision that special at- torneys appointed to assist United States attorneys should take the same oath required of the latter. This section was extended to assistant United States attor- neys, respecting whom no provision existed as to oaths. A portion of section 863 of title 48, U.S.C., 1940 ed., is retained in said title 48. For remainder of said section 863, see Distribution Table. Other provisions of section 643 of such title are incorporated in sections 133, 501 [now 541], and 541 [see 561] of this title. Other changes were made in phraseology. Editorial Notes PRIOR PROVISIONS A prior section 544, acts June 25, 1948, ch. 646, 62 Stat. 911; Sept. 2, 1958, Pub. L. 85–856, 72 Stat. 1104, related to bonds of United States marshals, prior to repeal by Pub. L. 89–554, § 8(a), and reenactment in section 564 of this title by section 4(c) of Pub. L. 89–554. § 545. Residence (a) 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 North- ern 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 as- signed dual or additional responsibilities that exempt such officer from the residency require- ment in this subsection for a specific period as established by the order and subject to renewal. (b) The Attorney General may determine the official stations of United States attorneys and assistant United States attorneys within the districts for which they are appointed. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 618; amended Pub. L. 95–530, § 1, Oct. 27, 1978, 92 Stat. 2028; Pub. L. 96–91, Oct. 25, 1979, 93 Stat. 700; Pub. L. 103–322, title XXXII, § 320932, Sept. 13, 1994, 108 Stat. 2135; Pub. L. 109–177, title V, § 501(a), Mar. 9, 2006, 120 Stat. 246.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 28 U.S.C. 505. [None]. In subsection (a), the word ‘‘shall’’ is substituted for ‘‘must’’. The word ‘‘thereof’’ is substituted for ‘‘of the District’’. 1948 ACT Prior section 505.—Based on title 28, U.S.C., 1940 ed., § 524 (June 20, 1874, ch. 328, § 2, 18 Stat. 109; May 28, 1896, ch. 252, §§ 8, 12, 29 Stat. 181, 183; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167; June 14, 1941, ch. 203, §§ 1, 2, 55 Stat. 251). The provisions of section 524 of title 28, U.S.C., 1940 ed., that the United States attorney shall give his per- sonal attention to the duties of his office and declaring the office of United States attorney vacant upon his re- moval from his district or neglect of duty, were omit- ted as unnecessary and inconsistent with section 507(b) [now 519] of this title, charging the Attorney General with the duty of supervising the United States attor- neys in the performance of their duties. The provision permitting the United States attorney and his assistants to reside within twenty miles of the