U.S. Code » Title 5 » Part PART III— EMPLOYEES › Subpart Subpart A— General Provisions › Chapter CHAPTER 21— DEFINITIONS

5 U.S.C. § 2102

The competitive service

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(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 “executive” 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.

Editorial NotesAmendments

1978—Subsec. (a)(1)(C). Pub. L. 95–454 added cl. (C).

Statutory Notes and Related SubsidiariesEffective 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.

Notes of Decisions
Cited in 80 cases (4 in the last 5 years), 1973–2023 · leading case: Lindsey v. Dist. of Columbia, 879 F. Supp. 2d 87 (D.D.C. 2012).
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Lindsey v. Dist. of Columbia, 879 F. Supp. 2d 87 (D.D.C. 2012). · cites it 12× “2 See 5 U.S.C. § 2102 (section titled “The competitive service”).”
Clarence Seay, Jr. v. Tennessee Valley Auth. Craven Crowell, 339 F.3d 454 (6th Cir. 2003). · cites it 3× “1985), the court looked at the definition of “competitive service,” under 5 U.S.C. § 2102 , which is “all civil service positions in the executive branch, except (A) positions which are specifically excepted from the competitive service by or under statute.”
Gingery v. Dep't of Def., 550 F.3d 1347 (Fed. Cir. 2008). · cites it 4× “" 5 U.S.C. §§ 2102 (a)(1), 2103(a) (2006). Agencies tend to have more flexible hiring for excepted service positions as opposed to competitive service positions.”
Semper v. United States, 100 Fed. Cl. 621 (Fed. Cl. 2011). · cites it 7× “5 U.S.C. § 2102 . In other words, judicial employees, are in the category of excepted employees.”
Mouton-Miller v. MSPB, 985 F.3d 864 (Fed. Cir. 2021). · cites it 2× “75; see also 5 U.S.C. § 2102 (a)(1)(A); 39 U.S.C. §§ 201 , 1001.”
Morris Davis v. James Billington, 681 F.3d 377 (D.C. Cir. 2012). · cites it 2× “Section 2102 of the 1966 Act, 5 U.S.C. § 2102 , defined the “competitive service,” with some exceptions not relevant here, as “all civil service positions in the executive branch.”
Bethel v. Jefferson, 589 F.2d 631 (D.C. Cir. 1978). · cites it 2× “The qualifier refers to 5 U.S.C. § 2102 , which defines the competitive service, and the Metropolitan Police Department simply does not come within that definition.”
Raymond E. Dodd v. Tennessee Valley Auth., 770 F.2d 1038 (Fed. Cir. 1985). · cites it 4× “-703 is whether TVA employees are included in the competitive service 3 as defined by 5 U.S.C. § 2102 . 4 As a government corporation, 16 U.”
Hedman v. United States, 15 Cl. Ct. 304 (Ct. Cl. 1988). · cites it 2× “See 5 U.S.C. § 2102 (a)(1)(A); 21 5 C.F.R. § 6.”
Mary G. Hartman v. Merit Sys. Prot. Bd., 77 F.3d 1378 (Fed. Cir. 1996). · cites it 2× “Petitioner has not cited, and we have not found, any statute specifically including her position within the competitive service.”
Jephunneh Lawrence v. Elmer B. Staats, 640 F.2d 427 (D.C. Cir. 1981). · cites it 2× “The term “competitive service” is defined in 5 U.S.C. § 2102 as follows: (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;…”
Van Wersch v. Dep't of Health & Human Servs., 197 F.3d 1144 (Fed. Cir. 1999). “The "competitive service” is described in 5 U.S.C. § 2102 . . The "excepted service” consists of those civil service positions which are not in the competitive service or the Senior Executive Service.”
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