Judge Wallach and the Federal Circuit Residency Requirement

I was curious why no announcement has been made that Judge Evan Wallach, recently confirmed by the Senate, has been sworn in to office.  The delay might be the residency requirement for Federal Circuit judges. 

As you are probably aware, the residency requirement was adopted with the creation of the Federal circuit and states in 28 U.S.C. 44(c) that:

TITLE 28 > PART I > CHAPTER 3 > § 44

§ 44. Appointment, tenure, residence and salary of circuit judges

(a)The President shall appoint, by and with the advice and consent of the Senate, circuit judges for the several circuits as follows:
Circuits Number of Judges
District of Columbia 11
First 6
Second 13
Third 14
Fourth 15
Fifth 17
Sixth 16
Seventh 11
Eighth 11
Ninth 29
Tenth 12
Eleventh 12
Federal 12.


(b)Circuit judges shall hold office during good behavior.
(c)Except in the District of Columbia, each circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service. While in active service, each circuit judge of the Federal judicial circuit appointed after the effective date of the Federal Courts Improvement Act of 1982, and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia. In each circuit (other than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the residents of each state [1] in that circuit.
(d)Each circuit judge shall receive a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351–361), as adjusted by section 461 of this title.

As far as I can tell, the America Invents Act did not ultimately repeal this provision. So, according to the statute, Judge Wallach needs to establish residency within fifty miles of Washington, D.C. before he can become an active judge of the Federal Circuit.

Judge Wallach noted the following in response to the Senate Judiciary Questionnaire:

3. Address: List current office address. If city and state of residence differs from your

place of employment, please list the city and state where you currently reside.


United States Court of lnternational Trade

One Federal Plaza

New York, New York 10278

 So, presumably his former residence was New York and he needs to meet the necessary requirements to establish residency within fifty miles of Washington, D.C. before he can be sworn-in.  What the necessary requirements are for establishing residency within 50 miles of Washington, D.C, I have no idea.  But, if the rules for establishing in-state tuition for Maryland apply, for example, he might be in for a wait as long as six months.  If that is the case, perhaps it will be a good excuse to spur Congress into action to finally revise 28 U.S.C. 44(c).

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