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

5 U.S.C. § 2104

Officer

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(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.

Editorial NotesAmendments

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).

Statutory Notes and Related SubsidiariesEffective 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.

Notes of Decisions
Cited in 26 cases, 1970–2019 · leading case: Nadine Pellegrino v. TSA, 937 F.3d 164 (3rd Cir. 2019).
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Nadine Pellegrino v. TSA, 937 F.3d 164 (3rd Cir. 2019). · cites it 4× “Because the definitions of “officer” and “employee” in 5 U.S.C. §§ 2104 and 2105 are underinclusive as applied to the proviso, we are reluctant to depend on them for our reading of “officer of the United States.”
Pellegrino v. U.S. Transp. SEC. Admin., 896 F.3d 207 (3rd Cir. 2018). · cites it 6× “The term “officer” is further defined in 5 U.S.C. § 2104 , which provides: For the purpose of this title, “officer[,]” .”
Pamela Gillie v. Law Off. of Eric A. Jones, 785 F.3d 1091 (6th Cir. 2015). · cites it 2× “5 U.S.C. § 2104 . Other restrictive definitions exist.”
Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 813 F. Supp. 82 (D.D.C. 1993). · cites it 2× “t controlled corporation; or (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…”
Hall v. Clinton, 143 F. Supp. 2d 1 (D.D.C. 2001). “See 5 U.S.C. § 2104 , 2105. DOJ argues that the former First Lady is a "quasi” or "de facto” employee.”
Olympic Fed. Sav. & Loan Ass'n v. Dir., Off. of Thrift Supervision, 732 F. Supp. 1183 (D.D.C. 1990). “5 U.S.C. § 2104 provides in pertinent part that: (a) For the purpose of this title, “officer”, except as otherwise provided by this section or when specifically modified, means .”
Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993). · cites it 4× “See 5 U.S.C. §§ 2104 & 2105. An officer or employee according to those sections must be: (i) appointed to the civil service; (ii) engaged in the performance of a federal function; and (iii) subject to supervision by.”
Nw. Forest Resource Council v. Espy, 846 F. Supp. 1009 (D.D.C. 1994). “Simply expressed, the counsel of persons who have been “appointed in the civil service,” see 5 U.S.C. §§ 2104 , 2105, costs the government nothing more in the way of compensation; their conduct is strictly hedged about by statute and rule to protect against temptation to profit…”
Torres v. Taylor, 456 F. Supp. 951 (S.D.N.Y. 1978). “The warden, defendant Taylor, would clearly be a federal “officer,” see 5 U.S.C. § 2104 (a), because he is appointed by and directly responsible to the head of an executive agency, the Attorney General.”
Hopkins v. United States, 206 Ct. Cl. 303 (Ct. Cl. 1975). “See 5 U.S.C. §§ 2104 , 2105, 3105 (1970). However, defendant’s reliance on the “appointed” rationale begs the fundamental question of whether employees of nonappropriated fund instrumentalities are, in fact, Federal employees.”
Opinion of the Justices, 647 A.2d 1104 (Del. 1994). “Amtrak directors do not take an oath of office_ Compare 5 U.S.C. §§ 2104 , 3331. As an Amtrak director, I [Governor Carper] would receive $300 per diem from Amtrak when engaged in the actual performance of my duties, be reimbursed for my travel and other expenses in connection…”
Ironridge Global IV, Ltd. v. Sec. & Exch. Comm'n, 146 F. Supp. 3d 1294 (N.D. Ga. 2015). “5 U.S.C. § 2104 : ' Thus, under the SEC’s reasoning, all officers are now mere employees by virtue of Congress’s placement of them in civil service.”
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