B-66664, JUNE 27, 1947, 26 COMP. GEN. 956

B-66664: Jun 27, 1947

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OR IS ONE FOR WHICH CONGRESS HAS FIXED A SPECIFIC RATE OF PAY. (B) THE APPOINTMENT UNDER THIS SECTION OF THE RULES IS SUPPORTED BY A WRITTEN AGREEMENT THAT THE PERSON SO SERVING WAIVES ANY AND ALL CLAIMS AGAINST THE GOVERNMENT ON ACCOUNT OF SUCH SERVICE. THERE IS NOT INVOLVED IN THIS QUESTION CIRCUMSTANCES IN WHICH A STATUTE PERMITS THE ACCEPTANCE OF VOLUNTARY OR UNCOMPENSATED SERVICES (E.G. THE IMPORTANCE OF YOUR DECISION ON THIS QUESTION DERIVES FROM THE FACT THAT IT WILL FURNISH SOME GUIDE LINES TO ADVISE THE COMMISSION AND THE OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT OF THE CRITERIA FOR DETERMINING WHEN THE REQUIREMENTS OF APPLICABLE LAWS RELATING TO COMPENSATION ARE MET. IS DISTINGUISHABLE FROM A COLLEGE STUDENT SERVING AS AN "INTERNE" IN THE CAPACITY OF AN OUTSIDE STUDENT OR INVESTIGATOR.

B-66664, JUNE 27, 1947, 26 COMP. GEN. 956

COMPENSATION - WAIVERS IN THE ABSENCE OF STATUTORY AUTHORITY, AN ORIGINAL APPOINTEE TO A POSITION IN THE FEDERAL SERVICE MAY NOT LEGALLY WAIVE HIS ORDINARY RIGHT TO THE COMPENSATION FIXED BY OR PURSUANT TO LAW FOR THE POSITION AND THEREAFTER BE ESTOPPED FROM CLAIMING AND RECEIVING THE COMPENSATION PREVIOUSLY WAIVED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 27, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 28, 1947, AS FOLLOWS:

THE COMMISSION WOULD APPRECIATE YOUR DECISION ON THE FOLLOWING QUESTION:

SECTION 6.4 (A) (1) (XII) OF THE CIVIL SERVICE RULES, EFFECTIVE MAY 1, 1947, EXCEPTS FROM THE COMPETITIVE CIVIL SERVICE AND PLACES IN SCHEDULE A "POSITIONS WITHOUT COMPENSATION PROVIDED SUCH APPOINTMENTS MEET THE REQUIREMENTS OF APPLICABLE LAWS RELATING TO COMPENSATION.' WOULD THIS PROVISO BE COMPLIED WITH UNDER THE FOLLOWING CIRCUMSTANCES: (A) THE POSITION INVOLVED FALLS WITHIN STATUTORY PAY SCHEDULES, SUCH AS THOSE OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR THE POSTAL LAWS, OR IS ONE FOR WHICH CONGRESS HAS FIXED A SPECIFIC RATE OF PAY; (B) THE APPOINTMENT UNDER THIS SECTION OF THE RULES IS SUPPORTED BY A WRITTEN AGREEMENT THAT THE PERSON SO SERVING WAIVES ANY AND ALL CLAIMS AGAINST THE GOVERNMENT ON ACCOUNT OF SUCH SERVICE; AND (C) THE AGENCY APPOINTING THE PERSON HAS NO SPECIFIC AUTHORIZATION TO ACCEPT UNCOMPENSATED SERVICES?

THERE IS NOT INVOLVED IN THIS QUESTION CIRCUMSTANCES IN WHICH A STATUTE PERMITS THE ACCEPTANCE OF VOLUNTARY OR UNCOMPENSATED SERVICES (E.G., SECTION 6 (B) OF THE ACT OF MARCH 31, 1947, PUBLIC LAW 26, 80TH CONGRESS, ESTABLISHING AN OFFICE OF SELECTIVE SERVICE RECORDS), OR IN WHICH, UNTIL SUCH TIME AS THE PRESIDENT SHALL DECLARE THE PRESENT EMERGENCY AT AN END, THE APPOINTMENT COMPLIES WITH THE PROVISO IN THE ITEM " COUNCIL OF NATIONAL DEFENSE" IN THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941 ( ACT OF JUNE 26, 1940, PUBLIC LAW 667, 76TH CONGRESS) AND THE PRESIDENT'S MEMORANDUM TO HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, DATED JUNE 19, 1945.

THE IMPORTANCE OF YOUR DECISION ON THIS QUESTION DERIVES FROM THE FACT THAT IT WILL FURNISH SOME GUIDE LINES TO ADVISE THE COMMISSION AND THE OTHER DEPARTMENTS AND AGENCIES OF THE GOVERNMENT OF THE CRITERIA FOR DETERMINING WHEN THE REQUIREMENTS OF APPLICABLE LAWS RELATING TO COMPENSATION ARE MET, IN CONNECTION WITH APPOINTMENTS UNDER SECTION 6.4 (A) (1) (XII) OF THE CIVIL SERVICE RULES.

THE QUESTION PRESENTED AROSE RECENTLY IN THE COURSE OF THE COMMISSION'S BUSINESS IN CONNECTION WITH THE POSSIBLE EMPLOYMENT OF COLLEGE OR UNIVERSITY STUDENTS--- UNDERGRADUATE OR GRADUATE--- IN FEDERAL AGENCIES WITHOUT COMPENSATION; AS A PART OF AN EDUCATIONAL INSTITUTION'S SO-CALLED ,INTERNESHIP" PROGRAM, DURING WHICH INTERNESHIP THEY WOULD BE ASSIGNED TO PRODUCTIVE WORK, I.E., TO THE REGULAR WORK OF THE AGENCY IN A POSITION WHICH WOULD ORDINARILY FALL IN THE COMPETITIVE CIVIL SERVICE.

THIS SITUATION, OF COURSE, IS DISTINGUISHABLE FROM A COLLEGE STUDENT SERVING AS AN "INTERNE" IN THE CAPACITY OF AN OUTSIDE STUDENT OR INVESTIGATOR, OBSERVING THE WORK OF A GOVERNMENT UNIT, PERFORMING TASKS WHICH FALL OUTSIDE THE USUAL FUNCTIONS OF THE UNIT, OR UTILIZING ITS FACILITIES PRIMARILY FOR THE BENEFIT OF HIS OWN EDUCATIONAL ADVANCEMENT. ALTHOUGH THE RESULTS OF THE INTERNE'S WORK WOULD BE INTERESTING AND PROBABLY USEFUL TO THE AGENCY IN SUCH A CASE, THE WORK WOULD NOT BE AUTHORIZED AS AN OFFICIAL TASK OR PROJECT AND WOULD ORDINARILY BE INCIDENTAL OR SUPPLEMENTAL TO THE INTERNE'S UNDERGRADUATE OR POST-GRADUATE STUDY IN THE EDUCATIONAL INSTITUTION. THE QUESTION PRESENTED DOES NOT INVOLVE THE PROPRIETY OF SUCH ARRANGEMENTS. SEE, FOR EXAMPLE, THE ACT OF APRIL 12, 1892, AS AMENDED, U.S. CODE, TITLE 20, SEC. 91.

IN VIEW OF PREVIOUS DECISIONS OF YOUR OFFICE AND OPINIONS OF THE ATTORNEY GENERAL, WE ASSUME THAT THE ANSWERS TO THE QUESTION POSED DO NOT REST ON ANY CONCLUSION OR INFERENCE THAT EMPLOYMENT WITHOUT COMPENSATION IS A VIOLATION OF SECTION 3679, REVISED STATUTES, U.S. CODE, TITLE 31, SEC. 665, PROHIBITING THE ACCEPTANCE OF "VOLUNTARY" SERVICE EXCEPT IN EXTREME EMERGENCIES. 27 COMP. DEC. 131, AUGUST 6, 1920; 7 COMP. GEN. 810, 811, JUNE 26, 1928; 20 COMP. GEN. 267, 269, NOVEMBER 19, 1940; 23 COMP. GEN. 900, MAY 27, 1944; 24 COMP. GEN. 314, OCTOBER 20, 1944; 30 OP. ATTY. GEN. 51, FEBRUARY 7, 1913; 30 OP. ATTY. GEN. 130, 131, MARCH 14, 1913.

IN 23 COMP. GEN. 900, 903, MAY 27, 1944, REFERRING TO R.S. 3679, YOU STATED:

"THERE HAS BEEN CONSIDERABLE MISUNDERSTANDING REGARDING THE PROPER APPLICATION OF THAT STATUTORY PROVISION--- THE PRACTICE HAVING BEEN ADOPTED, IT SEEMS, OF AUTHORIZING THE PAYMENT OF SALARY AT THE RATE OF $1.00 PER ANNUM IN ORDER TO PREVENT A VIOLATION OF SAID STATUTE. SUCH A PRACTICE IS UNNECESSARY UNLESS SOME OTHER STATUTE OR APPROPRIATION ACT REQUIRES THE PAYMENT OF $1.00 PER ANNUM.'

THE TENOR OF THE CITED DECISIONS AND OPINIONS IS, AS WE UNDERSTAND IT THAT THE PROHIBITION IN R.S. 3679 BY ITSELF DOES NOT PREVENT THE ACCEPTANCE OF GRATUITOUS SERVICES, IF OTHERWISE LEGAL, WHERE THE SERVICES ARE RENDERED BY ONE WHO, UPON BEING APPOINTED AS A GOVERNMENT EMPLOYEE WITHOUT COMPENSATION, AGREES IN WRITING AND IN ADVANCE THAT HE WAIVES ANY AND ALL CLAIMS AGAINST THE GOVERNMENT ON ACCOUNT OF SUCH SERVICE.

THE BASIC PROBLEM, IT SEEMS TO THE COMMISSION, IS TO DEFINE GENERALLY THE CIRCUMSTANCES UNDER WHICH IT IS, OR IS NOT, LEGALLY COMPETENT FOR AN ORIGINAL APPOINTEE TO A POSITION IN THE FEDERAL SERVICE TO WAIVE HIS ORDINARY RIGHT TO COMPENSATION.

WHEN THE POSITION TO BE FILLED IS ONE UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR EXAMPLE, ITS SCALE OF PAY IS REQUIRED TO BE FIXED UNDER STATUTORY PAY SCHEDULES AND ADMINISTRATIVE PROVISIONS PRESCRIBED BY CONGRESS. ONE OF THESE PROVISIONS IS THAT ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE GRADE OR CLASS TO WHICH THE POSITION IS ALLOCATED. RULE 6, SECTION 6, CLASSIFICATION ACT OF MARCH 4, 1923.

PREVIOUS DECISIONS OF YOUR OFFICE HAVE INDICATED THAT WHEN THE EMPLOYEE IS LEGALLY QUALIFIED FOR THE POSITION CONCERNED (24 COMP. GEN. 518, JANUARY 12, 1945), PAYMENT ACCORDING TO THE SCHEDULES AND PROVISIONS OF THE CLASSIFICATION ACT IS MANDATORY. 4 COMP. GEN. 56, JULY 14, 1924; 4 COMP. GEN. 106, 107, JULY 24, 1924; 6 COMP. GEN. 355, 358, NOVEMBER 20, 1926; 6 COMP. GEN. 530, 531, FEBRUARY 14, 1927; 10 COMP. GEN. 265, DECEMBER 11, 1930. IN THE FOLLOWING DECISIONS WAIVERS WERE HELD TO BE NOT PERMISSIBLE. 3 COMP. GEN. 1001, 1005, JUNE 26, 1924; 10 COMP. GEN. 178, OCTOBER 20, 1930.

THERE IS, HOWEVER, A BROAD STATEMENT APPEARING IN 24 COMP. GEN. 314, 316, OCTOBER 20, 1944, TO THE EFFECT THAT "A FEDERAL EMPLOYEE"(IN THAT CASE A VETERAN ENTITLED TO VOCATIONAL TRAINING UNDER PUBLIC LAW 16, 78TH CONGRESS) LAWFULLY MAY AGREE IN ADVANCE TO SERVE WITHOUT COMPENSATION IN ANY FEDERAL EMPLOYMENT" IN A POSITION THE COMPENSATION OF WHICH IS FIXED ADMINISTRATIVELY PURSUANT TO LAW UNDER A LUMP-SUM APPROPRIATION, AS DISTINGUISHED FROM A CONSTITUTIONAL OFFICE THE COMPENSATION OF WHICH IS FIXED BY OR PURSUANT TO STATUTE, THE OFFICER, IN THE LATTER CASE, OCCUPYING SUCH OFFICE BEING ENTITLED TO THE SALARY THEREOF BY REASON OF HIS TITLE TO THE OFFICE.'

DOES THIS STATEMENT APPLY UNIVERSALLY OR DOES IT REST ON THE AUTHORITY INHERENT IN THE VETERANS' TRAINING AND REHABILITATION LAWS? FOR EXAMPLE, UNDER THE ACT OF MARCH 24, 1943, PUBLIC LAW 16, 78TH CONGRESS, THE ADMINISTRATOR OF VETERANS' AFFAIRS IS AUTHORIZED TO UTILIZE THE FACILITIES OF ANY OTHER GOVERNMENTAL AGENCY, AND TO PROVIDE ADDITIONAL TRAINING FACILITIES "BY AGREEMENT OR CONTRACT WITH PUBLIC OR PRIVATE INSTITUTIONS OR ESTABLISHMENTS.' ALSO, SECTION 1500 OF THE ACT OF JUNE 22, 1944, PUBLIC LAW 346, 78TH CONGRESS, EXPRESSLY AUTHORIZES THE ADMINISTRATOR OF VETERANS' AFFAIRS "TO ENTER INTO CONTRACTS OR AGREEMENTS WITH SERVICES, AS HE MAY DEEM PRACTICABLE.'

ALSO, DOES THE EXPRESSION "THE COMPENSATION OF WHICH IS FIXED ADMINISTRATIVELY PURSUANT TO LAW UNDER A LUMP-SUM APPROPRIATION" REFER, AMONG OTHER THINGS, TO COMPENSATION FIXED BY CLASSIFICATION ACT METHODS OR OTHER METHODS BASED ON STATUTORY PAY SCALES?

SINCE IT IS INDICATED IN YOUR LETTER THAT THE MAIN QUESTION PRESENTED DOES NOT INVOLVE SITUATIONS IN WHICH THERE ARE SPECIFIC PROVISIONS OF LAW AUTHORIZING THE ACCEPTANCE OF VOLUNTARY SERVICES OR SERVICES WITHOUT OR AT NOMINAL COMPENSATION, SUCH PROVISIONS WILL NOT BE DISCUSSED. ALSO, YOUR UNDERSTANDING FROM THE DECISIONS CITED THAT THE PROHIBITION AGAINST THE ACCEPTANCE OF VOLUNTARY SERVICES (CONTAINED IN SECTION 3679, REVISED STATUTES) DOES NOT, OF ITSELF, PREVENT THE ACCEPTANCE OF GRATUITOUS SERVICES IF OTHERWISE LEGAL, WHERE THE SERVICES ARE RENDERED BY ONE WHO UPON BEING APPOINTED AS A GOVERNMENT EMPLOYEE WITHOUT COMPENSATION, AGREES IN WRITING, AND IN ADVANCE, THAT HE WAIVES ANY AND ALL CLAIMS AGAINST THE GOVERNMENT ON ACCOUNT OF SUCH SERVICE, IS CORRECT. YOUR QUESTION IN THE MATTER PRIMARILY APPEARS TO ARISE BECAUSE OF THE STATEMENT APPEARING IN 24 COMP. GEN. 314, 316, QUOTED IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER, SUPRA, TO THE EFFECT THAT AN EMPLOYEE LAWFULLY MAY AGREE IN ADVANCE TO SERVE WITHOUT COMPENSATION "IN A POSITION THE COMPENSATION OF WHICH IS FIXED ADMINISTRATIVELY PURSUANT TO LAW UNDER A LUMP SUM APPROPRIATION, AS DISTINGUISHED FROM A CONSTITUTIONAL OFFICE THE COMPENSATION FOR WHICH IS FIXED BY OR PURSUANT TO STATUTE, THE OFFICER, IN THE LATTER CASE, OCCUPYING SUCH OFFICE BEING ENTITLED TO THE SALARY THEREOF BY REASON OF HIS TITLE TO THE OFFICE.'

THAT STATEMENT WAS MADE WITH SPECIFIC REFERENCE TO SECTION 3679 OF THE REVISED STATUTES, AND WAS IN LINE WITH PREVIOUS HOLDINGS THAT AN APPOINTMENT TO SERVE WITHOUT COMPENSATION, WHICH IS ACCEPTED AND PROPERLY RECORDED, IS NOT A VIOLATION OF THE STATUTORY PROHIBITION AGAINST THE ACCEPTANCE OF VOLUNTARY SERVICE, AND IS VALID IF OTHERWISE LAWFUL. COMP. DEC. 131, 132. 30 OP. ATTY. GEN. 51, 52, 56. HOWEVER, IT DID NOT FORM THE BASIS FOR THE CONCLUSION IN 24 COMP. GEN. 314, THAT A VETERAN ENTITLED TO VOCATIONAL REHABILITATION UNDER JURISDICTION OF THE VETERAN'S ADMINISTRATION MIGHT RECEIVE TRAINING ON THE JOB IN A FEDERAL AGENCY WITHOUT BEING PAID SALARY OR WAGES BY THE AGENCY. RATHER, THAT CONCLUSION WAS BASED UPON THE PROVISIONS OF LAW CITED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, SUPRA, WHICH, ALSO, WERE CITED IN THE SUBMISSION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS, TO WHICH PROVISIONS OF LAW THE DECISION WAS ADDRESSED. IT SEEMS CLEAR THAT, UNDER THOSE PROVISIONS, ON- THE-JOB TRAINING FOR VETERANS IN FEDERAL AGENCIES UNDER AGREEMENTS TO SERVE WITHOUT BEING PAID SALARY OR WAGES WAS AUTHORIZED UNLESS PROHIBITED BY SECTION 3679 OF THE REVISED STATUTES. SINCE THAT SECTION WAS HELD NOT TO BE FOR APPLICATION, THERE WAS NOTHING TO PROHIBIT SUCH TRAINING.

WHERE COMPENSATION IS FIXED FOR ANY OFFICE OR POSITION BY OR PURSUANT TO STATUTE AND THERE EXISTS NO SPECIFIC AUTHORITY FOR THE PAYMENT OF AN AMOUNT LESS THAN THAT SPECIFICALLY PROVIDED, I AM OF THE OPINION THAT THE AMOUNT SO FIXED MUST BE PAID TO THE PERSON FILLING THE OFFICE OR POSITION AND THAT THERE CAN BE NO VALID WAIVER OF ALL OR ANY PART OF THE SALARY SO PROVIDED. IN THAT CONNECTION, SEE MILLER V. UNITED STATES, 103 F. 413, 415, IN WHICH THE COURT STATED:

* * * ANY BARGAIN WHEREBY, IN ADVANCE OF HIS APPOINTMENT TO AN OFFICE WITH A SALARY FIXED BY LEGISLATIVE AUTHORITY, THE APPOINTEE ATTEMPTS TO AGREE WITH THE INDIVIDUAL MAKING THE APPOINTMENT THAT HE WILL WAIVE ALL SALARY OR ACCEPT SOMETHING LESS THAN THE STATUTORY SUM, IS CONTRARY TO PUBLIC POLICY, AND SHOULD NOT BE TOLERATED BY THE COURTS. IT IS TO BE ASSUMED THAT CONGRESS FIXES THE SALARY WITH DUE REGARD TO THE WORK TO BE PERFORMED, AND THE GRADE OF MAN THAT SUCH SALARY MAY SECURE. IT WOULD LEAD TO THE GROSSEST ABUSES IF A CANDIDATE AND THE EXECUTIVE OFFICER WHO SELECTS HIM MAY COMBINE TOGETHER SO AS ENTIRELY TO EXCLUDE FROM CONSIDERATION THE WHOLE CLASS OF MEN WHO ARE WILLING TO TAKE THE OFFICE ON THE SALARY CONGRESS HAS FIXED, BUT WILL NOT COME FOR LESS. AND, IF PUBLIC POLICY PROHIBIT SUCH A BARGAIN IN ADVANCE, IT WOULD SEEM THAT A COURT SHOULD BE ASTUTE NOT TO GIVE EFFECT TO SUCH ILLEGAL CONTRACT BY INDIRECTION, AS BY SPELLING OUT A WAIVER OR ESTOPPEL. * * *

THAT STATEMENT FROM MILLER V. UNITED STATES WAS QUOTED BY THE UNITED STATES SUPREME COURT IN THE CASE OF GLAVEY V. UNITED STATES, 182 U.S. 595, 609, AND AFTER QUOTING SAID STATEMENT THE COURT PROCEEDED TO SAY:

IF IT WERE HELD OTHERWISE, THE RESULT WOULD BE THAT THE HEADS OF EXECUTIVE DEPARTMENTS COULD PROVIDE, IN RESPECT OF ALL OFFICES WITH FIXED SALARIES ATTACHED AND WHICH THEY COULD FILL BY APPOINTMENTS, THAT THE INCUMBENTS SHOULD NOT HAVE THE COMPENSATION ESTABLISHED BY CONGRESS, BUT SHOULD PERFORM THE SERVICE CONNECTED WITH THEIR RESPECTIVE POSITIONS FOR SUCH COMPENSATION AS THE HEAD OF A DEPARTMENT, UNDER ALL THE CIRCUMSTANCES, DEEMED TO BE FAIR AND ADEQUATE. IN THIS WAY THE SUBJECT OF SALARIES FOR PUBLIC OFFICERS WOULD BE UNDER THE CONTROL OF THE EXECUTIVE DEPARTMENT OF THE GOVERNMENT. PUBLIC POLICY FORBIDS THE RECOGNITION OF ANY SUCH POWER AS BELONGING TO THE HEAD OF AN EXECUTIVE DEPARTMENT. DISTRIBUTION OF OFFICERS UPON SUCH A BASIS SUGGESTS EVILS IN THE ADMINISTRATION OF PUBLIC AFFAIRS WHICH IT CANNOT BE SUPPOSED CONGRESS INTENDED TO PRODUCE BY ITS LEGISLATION. CONGRESS MAY CONTROL THE WHOLE SUBJECT OF SALARIES FOR PUBLIC OFFICERS; AND WHEN IT DECLARED THAT FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF THE ACT OF 1882 THE SECRETARY OF THE TREASURY "SHALL APPOINT OFFICERS TO BE DESIGNATED AS SPECIAL INSPECTORS OF FOREIGN STEAM VESSELS, AT A SALARY OF TWO THOUSAND DOLLARS PER ANNUM EACH," IT WAS NOT FOR THE SECRETARY TO MAKE THE REQUIRED APPOINTMENTS UNDER A STIPULATION WITH THE APPOINTEE THAT HE WOULD TAKE ANY LESS SALARY THAN THAT PRESCRIBED BY CONGRESS. THE STIPULATION THAT GLAVEY, WHO WAS LOCAL INSPECTOR, SHOULD EXERCISE THE FUNCTIONS OF HIS OFFICE OF SPECIAL INSPECTOR OF FOREIGN STEAM VESSELS "WITHOUT ADDITIONAL COMPENSATION" WAS INVALID UNDER THE STATUTE PRESCRIBING THE SALARY HE SHOULD RECEIVE WAS AGAINST PUBLIC POLICY, AND IMPOSED NO LEGAL OBLIGATION UPON HIM. AND THE MERE FAILURE OF THE APPOINTEE TO DEMAND HIS SALARY AS SUCH OFFICER UNTIL AFTER HE HAD CEASED TO BE LOCAL INSPECTOR, WAS NOT IN LAW A WAIVER OF HIS RIGHT TO THE COMPENSATION FIXED BY THE STATUTE.

IN THE CASE OF GOLDSBOROUGH V. UNITED STATES, CIRCUIT COURT OF MARYLAND, FEDERAL CASE NO. 5519, 10 FED. CASE 560, 562, TANEY 80, THE COURT SAID:

THERE ARE, CERTAINLY, CASES IN WHICH THE COMPENSATION TO A PERSON EMPLOYED IN A PUBLIC SERVICE MAY BE DETERMINED BY THE PRESIDENT OR THE HEAD OF A DEPARTMENT * * *. IN SOME CIRCUMSTANCES, THE POWER IS EXPRESSLY GIVEN BY ACT OF CONGRESS * * *. BUT WHERE AN ACT OF CONGRESS DECLARES THAT AN OFFICER OF THE GOVERNMENT OR PUBLIC AGENT, SHALL RECEIVE A CERTAIN COMPENSATION FOR HIS SERVICES, WHICH IS SPECIFIED IN THE LAW, UNDOUBTEDLY, THAT COMPENSATION CAN NEITHER BE ENLARGED NOR DIMINISHED BY ANY REGULATION OR ORDER OF THE PRESIDENT, OR OF A DEPARTMENT, UNLESS THE POSER TO DO SO IS GIVEN BY ACT OF CONGRESS.

SEE ALSO, UNITED STATES V. ANDREWS, 240 U.S. 90; MACMATH V. UNITED STATES, 248 U.S. 151; COCHOWER V. UNITED STATES, 248 U.S. 405, 407; BANCROFT V. UNITED STATES, 56 C.1CLS. 218, AFFIRMED WITHOUT OPINION BY THE UNITED STATES SUPREME COURT IN 260 U.S. 707, AND UNITED STATES V. JONES, 100 F.2D 65, 68. ALSO, IN ADDITION TO THE CASES CITED IN YOUR LETTER, SUPRA, SEE 14 COMP. GEN. 193, 195; 22 ID. 926; 23 ID. 109, 112; 23 ID. 216, 219.

HOWEVER, WHERE IN CONNECTION WITH EACH APPOINTMENT, COMPENSATION IS FIXED ADMINISTRATIVELY PURSUANT TO LAW UNDER A LUMP SUM APPROPRIATION, THERE IS NO LEGAL OBJECTION TO AN ADMINISTRATIVE DETERMINATION THAT COMPENSATION WILL NOT BE PAID TO A PARTICULAR APPOINTEE. 27 COMP. DEC. 131, 133. OP. ATTY. GEN. 51, 56.

IN VIEW OF THE FOREGOING, THERE APPEARS REQUIRED THE CONCLUSION THAT IN THE ABSENCE OF STATUTORY AUTHORITY THEREFOR, THERE ARE NO CIRCUMSTANCES UNDER WHICH AN ORIGINAL APPOINTEE TO A POSITION IN THE FEDERAL SERVICE PROPERLY MAY LEGALLY WAIVE HIS ORDINARY RIGHT TO THE COMPENSATION FIXED BY OR PURSUANT TO LAW FOR THE POSITION AND THEREAFTER BE ESTOPPED FROM CLAIMING AND RECEIVING THE COMPENSATION PREVIOUSLY WAIVED.