1625-0120 Stat/Authority

§ 2101a

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

tions 552a, 2105, 8334, 8343a, 8348, 8902, 8904, and 8906 of
this title, amending provisions set out as notes under
sections 8343a and 8906 of this title, and repealing provisions set out as notes under sections 8343a and 8348 of
this title] shall be considered an exception under subsection (b) of such section.’’

§ 2101a. The Senior Executive Service
The ‘‘Senior Executive Service’’ consists of
Senior Executive Service positions (as defined in
section 3132(a)(2) of this title).
(Added Pub. L. 95–454, title IV, § 401(a), Oct. 13,
1978, 92 Stat. 1154.)
EFFECTIVE DATE
Section effective 9 months after Oct. 13, 1978, and congressional review of provisions of sections 401 through
412 of Pub. L. 95–454, see section 415 of Pub. L. 95–454,
set out as a note under section 3131 of this title.

§ 2102. The competitive service
(a) The ‘‘competitive service’’ consists of—
(1) all civil service positions in the executive
branch, except—
(A) positions which are specifically excepted from the competitive service by or
under statute;
(B) positions to which appointments are
made by nomination for confirmation by the
Senate, unless the Senate otherwise directs;
and
(C) positions in the Senior Executive Service;
(2) civil service positions not in the executive branch which are specifically included in
the competitive service by statute; and
(3) positions in the government of the District of Columbia which are specifically included in the competitive service by statute.
(b) Notwithstanding subsection (a)(1)(B) of
this section, the ‘‘competitive service’’ includes
positions to which appointments are made by
nomination for confirmation by the Senate
when specifically included therein by statute.
(c) As used in other Acts of Congress, ‘‘classified civil service’’ or ‘‘classified service’’ means
the ‘‘competitive service’’.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L.
95–454, title IV, § 401(b), Oct. 13, 1978, 92 Stat.
1154.)
HISTORICAL AND REVISION NOTES
Derivation

U.S. Code

Revised Statutes and
Statutes at Large

(a) .............

5 U.S.C. 638 (less applicability to appointment and
promotion).

Jan. 16, 1883, ch. 27, § 7 (less
applicability to appointment and promotion), 22
Stat. 406.

Subsection (a) is restated in the form of a definition.
Subsection (a)(1) is based on former section 638, which
placed positions in the executive branch of the Government generally in the competitive service by the requirement that employment be predicated on passing
an examination or being exempted from examination,
and section 1 of the Act of Nov. 26, 1940, ch. 919, title
I, 54 Stat. 1211 (see table III), which authorized the
President, subject to certain exceptions, to place in the
classified civil service positions in the Executive departments, independent establishments, and other
agencies of the Government. In that Act the word ‘‘ex-

Page 166

ecutive’’ has been construed to modify ‘‘departments’’,
‘‘independent establishments’’; and ‘‘other agency’’.
This construction is supported by the language of the
Act of Jan. 16, 1883, and is embodied in Civil Service
Rule I. Acting under this statute, the President has
placed all but a comparatively few of the positions covered by the Act of Nov. 26, 1940, in the competitive service. The remainder are covered by the exceptions contained in the Civil Service Rules and Regulations. The
authority of the President conferred by the Act of Nov.
26, 1940, has been superseded in part by exceptions created by statutes enacted after that date. The effect of
these exceptions and the power conferred on the President by former section 633(2)8 (last sentence) to make
exceptions to the Civil Service Rules are preserved by
the words ‘‘positions which are specifically excepted
from the competitive service by or under statute’’.
In subsection (a)(1)(B), the words ‘‘or to pass an examination’’ are omitted as covered by the exclusion
from the ‘‘competitive service’’.
Subsection (a)(2) preserves the exception stated in
former section 638 modified to recognize the several
statutory exceptions to this exception that have been
enacted. The language of former section 638 relative to
examination is codified in sections 3304(b) and 3361. The
reference to veterans’ preference is omitted because the
statute referred to, R.S. § 1754, was superseded by sections 3 and 21 of the Act of June 18, 1929, ch. 28, 46 Stat.
21. Section 3 of the Act of June 18, 1929, was superseded
by the Act of June 27, 1944, ch. 287, 58 Stat. 387, as
amended, which is carried into this title. Rights preserved by section 18 of the Act of June 27, 1944, are further preserved by technical section 8. The exception for
laborers and workmen was superseded by the Act of
Nov. 26, 1940.
Subsection (b) is added because of the provisions in
section 3311 of title 39.
Subsection (c) is supplied for conformity inasmuch as
the terms are coextensive by definition.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
AMENDMENTS
1978—Subsec. (a)(1)(C). Pub. L. 95–454 added cl. (C).
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95–454 effective 9 months after
Oct. 13, 1978, and congressional review of provisions of
sections 401 through 412 of Pub. L. 95–454, see section
415 of Pub. L. 95–454, set out as an Effective Date note
under section 3131 of this title.

§ 2103. The excepted service
(a) For the purpose of this title, the ‘‘excepted
service’’ consists of those civil service positions
which are not in the competitive service or the
Senior Executive Service.
(b) As used in other Acts of Congress, ‘‘unclassified civil service’’ or ‘‘unclassified service’’
means the ‘‘excepted service’’.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L.
95–454, title IV, § 401(c), Oct. 13, 1978, 92 Stat.
1154.)
HISTORICAL AND REVISION NOTES
The section is supplied for convenience. The ‘‘excepted service’’ has come to mean all employees not in
the competitive service, for whatever reason.
AMENDMENTS
1978—Subsec. (a). Pub. L. 95–454 inserted reference to
Senior Executive Service.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95–454 effective 9 months after
Oct. 13, 1978, and congressional review of provisions of

Page 167

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

sections 401 through 412 of Pub. L. 95–454, see section
415 of Pub. L. 95–454, set out as an Effective Date note
under section 3131 of this title.

§ 2104. Officer
(a) For the purpose of this title, ‘‘officer’’, except as otherwise provided by this section or
when specifically modified, means a justice or
judge of the United States and an individual
who is—
(1) required by law to be appointed in the
civil service by one of the following acting in
an official capacity—
(A) the President;
(B) a court of the United States;
(C) the head of an Executive agency; or
(D) the Secretary of a military department;
(2) engaged in the performance of a Federal
function under authority of law or an Executive act; and
(3) subject to the supervision of an authority
named by paragraph (1) of this section, or the
Judicial Conference of the United States,
while engaged in the performance of the duties
of his office.
(b) Except as otherwise provided by law, an officer of the United States Postal Service or of
the Postal Regulatory Commission is deemed
not an officer for purposes of this title.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L.
91–375, § 6(c)(3), Aug. 12, 1970, 84 Stat. 775; Pub. L.
109–435, title VI, § 604(b), Dec. 20, 2006, 120 Stat.
3241.)
HISTORICAL AND REVISION NOTES
The section is supplied for convenience.
AMENDMENTS
2006—Subsec. (b). Pub. L. 109–435 substituted ‘‘Postal
Regulatory Commission’’ for ‘‘Postal Rate Commission’’.
1970—Subsec. (a). Pub. L. 91–375, § 6(c)(3)(A), (B), designated existing provisions as subsec. (a) and inserted
in introductory text ‘‘as otherwise provided by this section or’’ after ‘‘except’’.
Subsec. (b). Pub. L. 91–375, § 6(c)(3)(C), added subsec.
(b).
EFFECTIVE DATE OF 1970 AMENDMENT
Amendment by Pub. L. 91–375 effective within 1 year
after Aug. 12, 1970, on date established therefor by
Board of Governors of United States Postal Service and
published by it in Federal Register, see section 15(a) of
Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.

§ 2105. Employee
(a) For the purpose of this title, ‘‘employee’’,
except as otherwise provided by this section or
when specifically modified, means an officer and
an individual who is—
(1) appointed in the civil service by one of
the following acting in an official capacity—
(A) the President;
(B) a Member or Members of Congress, or
the Congress;
(C) a member of a uniformed service;
(D) an individual who is an employee
under this section;
(E) the head of a Government controlled
corporation; or

§ 2105

(F) an adjutant general designated by the
Secretary concerned under section 709(c) of
title 32;
(2) engaged in the performance of a Federal
function under authority of law or an Executive act; and
(3) subject to the supervision of an individual named by paragraph (1) of this subsection
while engaged in the performance of the duties
of his position.
(b) An individual who is employed at the
United States Naval Academy in the midshipmen’s laundry, the midshipmen’s tailor
shop, the midshipmen’s cobbler and barber
shops, and the midshipmen’s store, except an individual employed by the Academy dairy (if
any), and whose employment in such a position
began before October 1, 1996, and has been uninterrupted in such a position since that date is
deemed an employee.
(c) An employee paid from nonappropriated
funds of the Army and Air Force Exchange Service, Army and Air Force Motion Picture Service,
Navy Ship’s Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges,
and other instrumentalities of the United States
under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment,
and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of—
(1) laws administered by the Office of Personnel Management, except—
(A) section 7204;
(B) as otherwise specifically provided in
this title;
(C) the Fair Labor Standards Act of 1938;
(D) for the purpose of entering into an
interchange agreement to provide for the
noncompetitive movement of employees between such instrumentalities and the competitive service; or
(E) subchapter V of chapter 63, which shall
be applied so as to construe references to
benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or
(2) subchapter I of chapter 81, chapter 84 (except to the extent specifically provided therein), and section 7902 of this title.
This subsection does not affect the status of
these nonappropriated fund activities as Federal
instrumentalities.
(d) A Reserve of the armed forces who is not
on active duty or who is on active duty for
training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or
functions performed or pay or allowances received in that capacity.
(e) Except as otherwise provided by law, an
employee of the United States Postal Service or
of the Postal Regulatory Commission is deemed
not an employee for purposes of this title.
(f) For purposes of sections 1212, 1213, 1214,
1215, 1216, 1221, 1222, 2302, and 7701, employees appointed under chapter 73 or 74 of title 38 shall be
employees.