5 U.S.C. § 2103 — The excepted service

Page 301 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2104 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, ‘‘classi- fied 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 ap- plicability to ap- pointment and promotion). Jan. 16, 1883, ch. 27, § 7 (less applicability to appoint- ment 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 Govern- ment generally in the competitive service by the re- quirement 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 de- partments, independent establishments, and other agencies of the Government. In that Act the word ‘‘ex- 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 cov- ered by the Act of Nov. 26, 1940, in the competitive serv- ice. The remainder are covered by the exceptions con- tained 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 The authority of the President conferred by the Act of Nov. 26, 1940, has been superseded in part by exceptions cre- ated by statutes enacted after that date. The effect of these exceptions and the power conferred on the Presi- dent 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 ex- amination’’ 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 sec- tions 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 pre- served by section 18 of the Act of June 27, 1944, are fur- ther 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 defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes AMENDMENTS 1978—Subsec. (a)(1)(C). Pub. L. 95–454 added cl. (C). Statutory Notes and Related Subsidiaries 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, ‘‘unclas- sified 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 ‘‘ex- cepted service’’ has come to mean all employees not in the competitive service, for whatever reason. Editorial Notes AMENDMENTS 1978—Subsec. (a). Pub. L. 95–454 inserted reference to Senior Executive Service. Statutory Notes and Related Subsidiaries 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. § 2104. Officer (a) For the purpose of this title, ‘‘officer’’, ex- cept 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 depart- ment; (2) engaged in the performance of a Federal function under authority of law or an Execu- tive 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 of- ficer 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.)