5 U.S.C. § 2102 — The competitive service

Page 300 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 2101a United States, except positions in the uni- formed services; (2) ‘‘armed forces’’ means the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard; and (3) ‘‘uniformed services’’ means the armed forces, the commissioned corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Admin- istration. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 408; Pub. L. 90–83, § 1(4), Sept. 11, 1967, 81 Stat. 196; Pub. L. 96–54, § 2(a)(4), Aug. 14, 1979, 93 Stat. 381; Pub. L. 116–283, div. A, title IX, § 927(a), Jan. 1, 2021, 134 Stat. 3831.) HISTORICAL AND REVISION NOTES 1966 ACT The section is supplied to establish basis of reference to employees in this title. 1967 ACT This section amends various sections [§§ 2101, 4102, 4109, 5541, 8101] of title 5, United States Code, to reflect 1965 Reorganization Plan No. 2 (79 Stat. 1318), effective July 13, 1965, which consolidated the Coast and Geo- detic Survey and the Weather Bureau to form a new agency in the Department of Commerce to be known as the Environmental Science Services Administration. Editorial Notes AMENDMENTS 2021—Par. (2). Pub. L. 116–283 inserted ‘‘Space Force,’’ after ‘‘Marine Corps’’. 1979—Par. (3). Pub. L. 96–54 substituted ‘‘National Oceanic and Atmospheric’’ for ‘‘Environmental Science Services’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–54 effective July 12, 1979, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title. SHORT TITLE OF 1998 AMENDMENT Pub. L. 105–339, § 1, Oct. 31, 1998, 112 Stat. 3182, pro- vided that: ‘‘This Act [enacting sections 3330a to 3330c of this title, section 1316a of Title 2, The Congress, sec- tion 115 of Title 3, The President, and section 1354 of Title 31, Money and Finance, amending sections 2108, 2302, and 3304 of this title and section 4212 of Title 38, Veterans’ Benefits, repealing section 1599c of Title 10, Armed Forces, enacting provisions set out as notes under section 2302 of this title and section 601 of Title 28, Judiciary and Judicial Procedure, and amending provisions set out as a note under section 106 of Title 49, Transportation] may be cited as the ‘Veterans Em- ployment Opportunities Act of 1998’.’’ SHORT TITLE OF 1994 AMENDMENT Pub. L. 103–226, § 1, Mar. 30, 1994, 108 Stat. 111, pro- vided that: ‘‘This Act [amending sections 3381, 4101, 4103, 4105, 4107, 4108, 4113, 4118, 5597, 8351, 8433 to 8435, 8437, 8440a to 8440d of this title and section 1206 of Title 45, Railroads, repealing sections 4106 and 4114 of this title, enacting provisions set out as notes under sec- tions 3101, 3381, 5597, 8331, and 8351 of this title, and amending provisions set out as a note under section 403–4 of Title 50, War and National Defense] may be cited as the ‘Federal Workforce Restructuring Act of 1994’.’’ SHORT TITLE OF 1990 AMENDMENT Pub. L. 101–508, title VII, § 7202(a), Nov. 5, 1990, 104 Stat. 1388–335, provided that: ‘‘This section [amending sections 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8347, 8401, 8461, and 8901 of this title and enacting provi- sions set out as notes under section 2105 of this title] may be cited as the ‘Portability of Benefits for Non- appropriated Fund Employees Act of 1990’.’’ TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. COORDINATION OF TITLE VII OF PUB. L. 101–508 WITH SECTION 909 OF TITLE 2 Pub. L. 101–508, title VII, § 7301, Nov. 5, 1990, 104 Stat. 1388–341, provided that: ‘‘For purposes of section 202 of the Balanced Budget and Emergency Deficit Reaffirma- tion Act of 1987 [probably means section 202 of the Bal- anced Budget and Emergency Deficit Control Reaffir- mation Act of 1987, Pub. L. 100–119, which was formerly classified to section 909 of Title 2, The Congress], this title and the amendments made by this title [amending sections 552a, 2105, 3502, 5334, 5335, 5365, 5551, 6308, 6312, 8331, 8334, 8339, 8342, 8343a, 8347, 8348, 8401, 8420a, 8461, 8901, 8902, 8904, 8906, 8909, and 8910 of this title, enacting provisions set out as notes under this section and sec- 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 provi- sions set out as notes under sections 8343a and 8348 of this title] shall be considered an exception under sub- section (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.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 9 months after Oct. 13, 1978, and con- gressional 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 ex- cepted 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 Serv- ice; (2) civil service positions not in the execu- tive branch which are specifically included in the competitive service by statute; and (3) positions in the government of the Dis- trict of Columbia which are specifically in- cluded in the competitive service by statute. (b) Notwithstanding subsection (a)(1)(B) of this section, the ‘‘competitive service’’ includes 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.)