Of the District of Puerto Rico, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-1443

EBEN ALEXANDER III, M.D.,

Plaintiff, Appellant,

v.

BRIGHAM AND WOMEN'S PHYSICIANS ORGANIZATION, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Senior Circuit Judge,

and Gelpi, District Judge. *

Michael Paris, with whom Colleen C. Cook and Nystrom Beckman

& Paris LLP were on brief, for appellant.

David C. Casey, with whom Littler Mendelson, PC was on brief,

for appellees.

January 23, 2008
Even though the parties dispute certain facts, none of those 1

disputes is relevant to our decision.

-2-

SELYA, Senior Circuit Judge. This appeal implicates the

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§§ 1001-1461. It presents two issues of first impression concerning

the scope of ERISA's exemption for so-called top-hat deferred

compensation plans. See id. § 1051(2). After careful

consideration, we conclude — as did the district court — that the

plans at issue are valid top-hat plans. In the course of our

analysis, we reject the appellant's claims (i) that the plans cater

to more than a select group of highly compensated employees and

(ii) that the applicability of the top-hat exemption hinges on an

implicit requirement that affected employees possess individual

bargaining power. 

I. BACKGROUND

We set forth here only those (essentially uncontroverted)

facts that are necessary to place this appeal into perspective.1

We refer readers who hunger for more detail to the district court's

exegetic opinion. See Alexander v. Brigham & Women's Physicians

Org., 467 F. Supp. 2d 136, 137-41 (D. Mass. 2006). 

In 1988, plaintiff-appellant Eben Alexander III began

working for the Brigham Surgical Group Foundation (BSG), a

hospital-based physicians' organization that employed a host of

surgeons who, like the appellant, doubled in brass as Harvard
-3-

Medical School (Harvard) faculty members. In January of 2001, BSG

morphed into a new organizational structure known as Brigham &

Women's Physicians Organization. As this corporate shuffle has no

bearing on the claims before us, we refer throughout to BSG as the

employer of record.

Due to their academic affiliation, the members of BSG's

full-time surgical complement were subject to special Harvardimposed salary caps. Over time, these caps began to chafe: BSG

found that they hindered its ability to recruit and retain topflight surgeons (who could earn substantially more in private

practice). To remove this impediment yet still remain compliant

with Harvard's wishes, BSG created two deferred compensation plans:

the Faculty Retirement Benefit Plan (FRBP) and the Unfunded

Deferred Compensation Plan (UDCP). By allocating portions of a

surgeon's "excess" earnings to these unfunded accounts, BSG

expected that it would make employment at the hospital more

attractive to surgeons.

We pause at this juncture to sketch the architecture of

the plans. The critical datum under each plan is a given surgeon's

net practice income (NPI), that is, the net of payments

attributable to the services that he rendered less BSG's costs

allocable to those services. In any year in which a surgeon does

not have NPI equal to or greater than his base salary, he incurs an

obligation to repay BSG for the deficit (either out of future NPI
The lower court's description of this aspect of the plan, see 2

Alexander, 467 F. Supp. 2d at 139, albeit stipulated to by the

parties, is an inexact paraphrase. Although the stipulation varies

in some respects from the actual language of the FRBP, the

discrepancies are not material to our decision.

There is, however, some evidence that, from the beginning, 3

BSG anticipated that no more than 10% of its aggregate workforce

would contribute to the UDCP.

-4-

or out of pocket). In a rosier scenario — when and if a surgeon's

NPI exceeds Harvard's earnings cap — the excess (up to 25% of the

surgeon's salary) will be credited to his account in the FRBP. If 2

any surplus NPI remains (that is, if the excess of NPI over the

salary cap is greater than the amount consigned to the FRBP), 50%

of that surplus will be credited to the surgeon's account in the

UDCP and the remainder will escheat to BSG. Should a surgeon

produce a negative NPI in any year, the per annum deficit will be

carried forward and debited against positive balances in his FRBP

and UDCP accounts.

At the plans' inception, BSG lacked a clear indication as

to the number of surgeons who might earn enough to produce

contributions to the FRBP. Over time, however, it became evident 3

that only a small fraction of the surgical complement would achieve

that distinction. The district court determined that the relevant

years for purposes of this case were 1997, 1998, and 1999, see id.

at 140, and the parties have acquiesced in that configuration. The

figures for those years illustrate the "small fraction" trend. All
-5-

surgeons were potentially eligible to contribute to the plans; the

key was whether a given surgeon generated sufficient NPI. The

surgeons en masse constituted 32.4%, 30.7%, and 27.2%,

respectively, of BSG's aggregate workforce. However, the roster of

surgeons who actually achieved the requisite income level(s) and

thus contributed money into one or both of the plans was

significantly smaller. In 1997, 8.7% of BSG's overall employee

population contributed to the FRBP and 5.8% to the UDCP; in 1998,

the figures were 6.2% and 3.3%, respectively; and in 1999, the

figures were 4.9% and 3.1%, respectively. 

A glance at the average income of the plan contributors

conveys the magnitude of the pecuniary cleft between them and the

employee population as a whole. During the three years in

question, BSG employees as a whole averaged annual earnings of

$83,403 (1997), $80,491 (1998), and $74,376 (1999). Meanwhile, the

FRBP contributors earned on average $434,840 (1997), $476,024

(1998), and $418,059 (1999). The UDCP contributors were even more

richly compensated; they earned on average $503,730 (1997),

$581,320 (1998), and $483,073 (1999).

The record is pellucid that, upon recruiting the

appellant, BSG introduced him to a compendium of fringe benefits.

This introduction included a review of the documentation describing

the FRBP and the UDCP and an explanation of the system of credits
We note that, during the course of his career with BSG, the 4

appellant's performance resulted in both positive and negative NPI

figures, leading to a series of credits and debits to his deferred

compensation plan accounts.

-6-

and debits used in connection therewith. At that time — and at 4

all times material to this case — the plans covered all full-time

BSG surgeons who held Harvard faculty appointments. As written,

the plans afforded no option for any surgeon to opt out. And

because they were already in place when the appellant joined BSG,

he had no real opportunity to bargain over their terms.

That is not to say that the terms of the plans were set

in cement. Of course, the appellant, as an individual employee,

was unable to alter those terms. Like every other surgeon,

however, he was a voting member of BSG. As such, standard

corporate governance and decisionmaking mechanisms stood available

to him. For example, BSG's board, which included surgeons as

directors, could amend the plans, subject to the concurrence of the

board's compensation committee (which, under BSG's bylaws, has

"final authority respecting all compensation arrangements . . .

between the Corporation and its . . . Employees"). While such

corporate structures are not equivalent to direct employee

democracy, they are nonetheless meaningful. 

Here, moreover, the record indicates that the system

responded to the surgeons and their wishes. As to plan amendments,

the reviews are mixed: on one occasion, BSG's executive committee
The appellant suggests that the infrequency of amendment is 5

emblematic of a lack of bargaining power. That is sheer

speculation; that circumstance may well have been due to widespread

satisfaction with the plans as they stood.

-7-

rejected a proposal to amend the plans, but on a different occasion

(in 1990) a proposal to revise the terms of the plans so as to make

them available to Harvard faculty members of all ranks was

adopted.5

With this backdrop in place, we turn to the genesis of

the litigation. In 2001, BSG terminated the appellant's

employment. Simultaneously, it notified him that he was running a

cumulative NPI deficit and that, therefore, his FRBP and UDCP

accounts would be debited by more than $400,000 to offset that

deficit. The appellant protested, but to no avail.

After his ouster, the appellant sued BSG and related

defendants in the United States District Court for the District of

Massachusetts, asserting claims under both federal and state law.

The district court deemed the state-law claims preempted, and those

claims are not before us. We focus, then, on the appellant's

federal claims. 

In brief, those claims allege that BSG's sponsorship and

administration of the FRBP and UDCP violated ERISA's vesting and

fiduciary duty requirements. The appellant seeks money damages and

ancillary relief (including attorneys' fees). BSG — we use this

acronym throughout this opinion as a shorthand for all named
-8-

defendants — replies that the plans, although within the realm of

ERISA, were top-hat plans and thus exempt from the enumerated

requirements.

After prolonged discovery and the denial of cross-motions

for summary judgment, the district court conducted a bench trial.

It found that the plans were maintained primarily for the purpose

of providing deferred compensation; that the surgeons as a group

possessed sufficient bargaining power to alter the terms of the

plans; and that the absence of individual bargaining power was

irrelevant. See id. at 142, 145, 147. Having arrived at these

findings, the court ruled that the plans came within the top-hat

exemption and that, therefore, ERISA's vesting and fiduciary duty

requirements were inapposite. See id. at 148. The court entered

judgment accordingly, and this timely appeal ensued.

II. ANALYSIS

BSG crafted the two deferred compensation plans at issue

here to take advantage of ERISA's top-hat provision, which applies

to any "plan which is unfunded and is maintained by an employer

primarily for the purpose of providing deferred compensation for a

select group of management or highly compensated employees." 29

U.S.C. § 1051(2). Not surprisingly, then, the questions before us

revolve around the proper scope of that exemption. 

In examining these questions, we begin by memorializing

the applicable standard of review. We then orient our inquiry in
It is beyond cavil that the plans at issue here satisfy the 6

other two statutory criteria: they are unfunded and maintained by

BSG primarily to provide a deferred compensation benefit. 

-9-

terms of statutory purpose. Finally, we consider the appellant's

dual assignments of error one by one and explain why we find them

unconvincing.

A. Standard of Review.

It is common ground that deference is due to findings of

fact made by a trial court following a bench trial. See Sierra

Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181 (1st Cir.

1997); Fed. R. Civ. P. 52(a). Here, however, the appellant does

not challenge the district court's factual findings; rather, he

trains his fire on certain of the court's legal conclusions.

First, he calumnizes the court's determination as to which

subpopulation of employees should be considered in deciding whether

a deferred compensation plan meets the top-hat provision's "select

group" requirement. Second, he argues that the district court

erred as a matter of law in failing to recognize that the statute

implicitly requires that every individual in the select group

possess bargaining power sufficient to negotiate the terms of the

plans. Because these asseverations demand that we ascertain what

the statute requires as a general matter, they engender de novo 6

review. See Harvey v. Johanns, 494 F.3d 237, 240 (1st Cir. 2007);

In re 229 Main St. Ltd. P'ship, 262 F.3d 1, 3 (1st Cir. 2001).
-10-

B. Statutory Purpose.

ERISA is a comprehensive statutory scheme enacted in

response to escalating concerns about "the mismanagement of funds

accumulated to finance employee benefits and the failure to pay

employees benefits from accumulated funds." Massachusetts v.

Morash, 490 U.S. 107, 115 (1989); see Degnan v. Publicker Indus.,

Inc., 83 F.3d 27, 30 (1st Cir. 1996) ("ERISA is a remedial statute

designed to fashion anodynes that protect the interests of plan

participants and beneficiaries."). ERISA's substantive protections

are designed largely "to safeguard the financial integrity of

employee benefit funds, to permit employee monitoring of earmarked

assets, and to ensure that employers' promises are kept." Belanger

v. Wyman-Gordon Co., 71 F.3d 451, 454 (1st Cir. 1995).

The top-hat provision cuts a swath through this

regulatory thicket, relieving employers of many of ERISA's more

onerous burdens if — and only if — certain circumstances exist. To

reach that safe harbor, a plan must be "unfunded" and "maintained

by an employer primarily for the purpose of providing deferred

compensation for a select group of management or highly compensated

employees." 29 U.S.C. § 1051(2). When those preconditions are

satisfied, the plan is exempted from several of ERISA's

stringencies, including rules governing plan participation,

vesting, funding, and fiduciary duty. See Hampers v. W.R. Grace &

Co., 202 F.3d 44, 46 n.3 (1st Cir. 2000); see also Cogan v. Phoenix
-11-

Life Ins. Co., 310 F.3d 238, 242 (1st Cir. 2002). Reporting and

disclosure requirements remain applicable. See 29 U.S.C. §§ 1021-

1031; Hampers, 202 F.3d at 46 n.3.

The origins of the top-hat provision lie in Congress's

insight that high-echelon employees, unlike their rank-and-file

counterparts, are capable of protecting their own pension

interests. See Gallione v. Flaherty, 70 F.3d 724, 727 (2d Cir.

1995); see also Dep't of Labor Op. No. 90-14A (1990). Presuming

that employees of this stature can fend for themselves, Congress

relaxed some of ERISA's prophylactic obligations.

This congressional purpose is a reliable guidepost for

the task of statutory interpretation. See Beckley Capital Ltd.

P'ship v. DiGeronimo, 184 F.3d 52, 57 (1st Cir. 1999). Beyond that

point, however, we possess few if any interpretive aids in

discerning the precise scope of the top-hat provision. Thus, as a

matter of both necessity and preferred practice, see, e.g., United

States v. Meade, 175 F.3d 215, 219 (1st Cir. 1999), we turn to the

statutory text. We add only that neither party has directed us to

any useful legislative history.

C. Select Group.

As said, the top-hat provision applies only if, among

other things, a plan is maintained for the primary benefit of "a

select group of management or highly compensated employees." 29

U.S.C. § 1051(2). The first issue raised by the appellant concerns
It is an open question whether the statutory phrase "select 7

group" modifies only the term "management" or also modifies the

term "highly compensated employees." For the purposes at hand, we

assume arguendo, without deciding, that both categories of

employees are subject to the "select group" requirement. 

-12-

the methodology used in determining whether a given group is

"select." He argues that the statute envisions that the entire 7

cohort of employees to whom a plan was offered — here, every fulltime BSG surgeon who held a Harvard faculty appointment — comprises

the relevant group. Taking this approach, he says that the plans

here at issue were maintained for roughly 30% of the workforce

(hardly a "select" group). 

The district court rejected this argument. It held that

the relevant inquiry involved only those surgeons who in fact

crossed the NPI threshold and contributed money to the plans. In

so holding, the court concluded that "[a]s a practical matter" the

plans were "maintained" for the surgeons who actually contributed

and not for the more sizable group of surgeons who nominally were

covered by the language of the plan documents. Alexander, 467 F.

Supp. 2d at 144. Operating from this coign of vantage, the court

found that the FRBP never was maintained for more than 8.7% of the

relevant universe and that the UDCP never was maintained for more

than 5.8% of the relevant universe. Id. So viewed, both groups

were "select." Id.

The lower court's rationale fits readily within an

unforced reading of the statutory text. After all, a substantial
-13-

precondition — the accumulation of NPI in excess of the salary cap

— must be satisfied before any surgeon can squirrel away money in

either of the plans. That gets the grease from the goose: owing to

the height of the threshold that contributors need to surmount,

only a relatively small fraction of BSG surgeons contributed to

either plan in the relevant years. Common sense suggests that it

is this small fraction that should be taken into account in

determining the composition of the select group for whom the plans

were maintained.

We are fortified in this impression about the dimensions

of the select group by the flanking statutory phrases: "maintained"

and "highly compensated." In view of Congress's linkage of these

terms, it would seem very strange to say that the plans were being

"maintained by an employer primarily for the purpose of providing

deferred compensation" to employees who were not highly

compensated, who did not cross the income-generating threshold

needed to become plan contributors, and who might never be able to

do so.

The more natural and sensible reading of the statute is

that a plan is "maintained" for a group of employees only if those

employees realistically have the capacity to benefit from it.

Thus, for the purpose of determining whether a plan services a

select group, we find relevant here only those employees who

actually earned enough NPI to fund plan contributions. They are
-14-

the employees for whom the money in the plans is being managed and

held; they are thus the employees whom Congress had in mind when it

devised the contours of the top-hat carve-out.

This conclusion is not at odds with the case law. The

other courts that have spoken to this issue confronted

categorically different situations — either situations in which

employers or employees retained the discretion to contribute to the

deferred compensation plans when and if they chose or situations in

which every member of a designated group of employees received plan

contributions albeit in differing amounts depending on some

variable (say, the incidence of commissions). See, e.g., Demery v.

Extebank Deferred Comp. Plan (B), 216 F.3d 283, 285 (2d Cir. 2000);

Guiragoss v. Khoury, 444 F. Supp. 2d 649, 654 n.4 (E.D. Va. 2006);

Carrabba v. Randalls Food Mkts., Inc., 38 F. Supp. 2d 468, 471

(N.D. Tex. 1999). Thus, unlike this case, either every employee

within the designated group received some benefit from the plan or

someone possessed the ability to fund the plan as a matter of

discretion (so that, crucially, the ability to fund the plans was

always in existence).

The BSG plans are quite different: surgeons have no

automatic entitlement to deferred compensation. Rather, any

particular surgeon can contribute to the plans if — and only if —

he or she generates sufficient NPI to surpass the salary cap. The

surgeons who succeed in that endeavor can and do contribute; those
-15-

who fail have no option to deposit money into the plans. Under

these circumstances, it would be curious — and, ultimately,

incorrect — to say that those plans were "maintained by an employer

primarily for the purpose of providing deferred compensation" to

the latter cadre of surgeons, that is, surgeons incapable of

contributing to the plans.

The appellant has a fallback position. He argues, in the

alternative, that ERISA's statutory definition of "participant"

should define the relevant employee universe. Under that

definition, "participants" include, inter alia, any employee "who

is or may become eligible to receive a benefit of any type from an

employee benefit plan." 29 U.S.C. § 1002(7). The appellant

contends that, applying this definition, all the BSG surgeons

should be included as part of the "select group" because each one

of them signed the same plan documents and therefore might, if his

or her earnings soared, "become eligible" to receive plan benefits.

This contention lacks force because the insertion of the

term "participant" is made of whole cloth. The top-hat provision

does not refer to the term "participant" at all, nor does any

legislative history suggest that Congress intended to import that

defined term into the top-hat provision. Indeed, the affirmative

use of the term "participants" in a distinct provision of section

1051, see 29 U.S.C. § 1051(3)(A), strongly implies that the

definition does not apply sub silentio throughout the statute. See
-16-

Duncan v. Walker, 533 U.S. 167, 173 (2001) (explaining that

"[w]here Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely

in the disparate inclusion and exclusion") (citation and internal

quotation marks omitted); United States v. Nason, 269 F.3d 10, 16-

17 (1st Cir. 2001) (similar).

The appellant's argument boils down to the notion that,

wherever ERISA mentions plans and employees, the drafters intended

that reference should be made to the statutory definition of

"participants." This notion is unfounded. The specific language

used in section 1051(2)'s "participant" definition clearly

encompasses employees who have not yet and may never become

eligible for plan participation — yet the language of the top-hat

exemption does not countenance the prospect of mere future

eligibility. One does not "maintain[]" a plan for employees who

are not yet eligible for it.

The fact that the plan documents for the FRBP refer to

the surgeons as "[p]articipant(s)" does not undermine this

conclusion. While a plan's specific language can aid a court in

determining whether that plan qualifies as a top-hat plan, see,

e.g., Bakri v. Venture Mfg. Co., 473 F.3d 677, 678 (6th Cir. 2007),

a scrivener's choice of plan language cannot be allowed to control
This holding defeats the appellant's reliance on Darden v. 8

Nationwide Mut. Ins. Co., 717 F. Supp. 388 (E.D.N.C. 1989), aff'd,

922 F.2d 203 (4th Cir. 1991), rev'd on other grounds, 503 U.S. 318

(1992). Darden rested squarely on an erroneous holding that the

"participant" definition should be transplanted root and branch

into the top-hat exemption. See id. at 396-97. 

-17-

the more general interpretive inquiry into what the statute

requires.

For these reasons, we reject the appellant's importuning

that we broaden the "select group" analysis by engrafting onto the

top-hat provision the unrelated statutory definition of

"participant." While ERISA, as a broad remedial statute, should 8

be liberally construed in favor of coverage, Kross v. W. Elec. Co.,

701 F.2d 1238, 1242 (7th Cir. 1983), that principle does not permit

us to override the clear text of the statute.

The itinerary for this leg of our voyage lists one more

port of call. Once we have determined the relevant subpopulation

of employees, it remains to be seen whether those employees

constitute a "select group of . . . highly compensated employees."

In this instance, the answer is obvious.

The status analysis turns on both qualitative and

quantitative dimensions. See Senior Exec. Ben. Plan Participants

v. New Valley Corp., 89 F.3d 143, 148 (3d Cir. 1996). As the

highest-earning surgeons at BSG, the employees who contributed to

the plans are qualitatively select; and because they comprise no

more than 8.7% of BSG's workforce, the group is quantitatively
-18-

select as well. See, e.g., Demery, 216 F.3d at 289 (describing

15.34% of the workforce as within "the acceptable size for a

'select group'").

The question of whether the relevant universe of

employees is "highly compensated" is even more open-and-shut. To

come within the compass of the top-hat provision, the employer must

be able to show a substantial disparity between the compensation

paid to members of the top-hat group and the compensation paid to

all other workers. See Simpson v. Ernst & Young, 879 F. Supp. 802,

816 (S.D. Ohio 1994). Over the three years in question, the

average income of contributors to the FRBP was roughly $440,000 —

more than five times the average income of BSG employees as a

whole. During the same time frame, the average income of the UDCP

contributors was even greater (and, thus, the gulf was even wider).

Although we acknowledge that in some cases it will be difficult to

determine the exact boundaries of what constitutes "high"

compensation within the purview of the top-hat provision, the case

at hand is nowhere near the gray area; the contributors to BSG's

plans were highly compensated in both relative and absolute terms.

The appellant's first assignment of error therefore fails.

D. Bargaining Power.

We turn now to the appellant's second argument. The

district court found that, when considered collectively, both the

plan contributors and the general population of teaching surgeons
-19-

possessed appreciable power to influence the terms of their

deferred compensation arrangements. Alexander, 467 F. Supp. 2d at

147. Relatedly, the court found that the appellant, as an

individual, lacked that power. Id. at 140.

The appellant asserts that the court erred in concluding

that his lack of individual bargaining power was irrelevant to the

top-hat determination. In his view, every member of the select

group for whose benefit a top-hat plan exists must possess

bargaining power sufficient to influence the terms of the plan;

elsewise, the plan cannot qualify for the exemption. 

Once again, we look first to the text of the top-hat

provision. In that proviso, Congress nowhere mentioned bargaining

power. Indeed, the statutory language contains no indication that

Congress contemplated that courts would consider employees' ability

to bargain over the terms of their deferred compensation plans,

either individually or collectively, when measuring the bona fides

of a select group and determining the applicability of the top-hat

provision.

What authority exists for the appellant's position

derives from a Department of Labor (DOL) opinion letter purporting

to shed light on Congress's reasons for enacting the top-hat

provision. In pertinent part, that letter states:

It is the view of the Department that in

providing relief for "top-hat" plans from the

broad remedial provisions of ERISA, Congress

recognized that certain individuals, by virtue
-20-

of their position or compensation level, have

the ability to affect or substantially

influence, through negotiation or otherwise,

the design and operation of their deferred

compensation plan, taking into consideration

any risks attendant thereto, and, therefore,

would not need the substantive rights and

protections of Title I [of ERISA].

DOL Op. No. 90-14A.

The appellant leans heavily on the reasoning of this

letter and chronicles a number of cases in which courts have cited

the letter when discussing the individualized bargaining power of

top-hat plan contributors. See, e.g., Duggan v. Hobbs, 99 F.3d

307, 312-13 (9th Cir. 1996); Guiragoss, 444 F. Supp. 2d at 658-59,

664; Carrabba, 38 F. Supp. 2d at 477-78; see also Prior v.

Innovative Comm. Corp., 360 F. Supp. 2d 704, 713-14 (D. V.I. 2005)

(relying on Duggan). Insofar as these cases adumbrate a hard-andfast requirement that individual top-hat plan beneficiaries must

have bargaining power, they all ultimately derive that requirement

from the DOL opinion letter.

We decline the appellant's invitation to depart from the

plain language of the statute and jerry-build onto it a requirement

of individual bargaining power. The DOL opinion letter speaks only

to Congress's rationale for enacting the top-hat provision. It

does not present itself as an interpretation of the provision's

requirements, nor does it make any mention of the need for or

propriety of demanding that employers demonstrate their employees'

ability to negotiate the terms of deferred compensation plans.
-21-

Agency opinion letters command deference only to the

extent that they possess the power to persuade. See Kalda v. Sioux

Valley Physician Partners, Inc., 481 F.3d 639, 647 (8th Cir. 2007);

Johnson v. Watts Regulator Co., 63 F.3d 1129, 1134 n.2 (1st Cir.

1995). The DOL opinion letter here at issue falls within this

taxonomy.

We have no quarrel with the letter's persuasiveness as a

gloss on Congress's intentions in enacting the top-hat provision.

But relying on that letter to justify a nascent requirement that

every employee covered by a top-hat plan possess the power to

negotiate the terms of that plan is simply too much of a stretch.

To our way of thinking, such a reading is both unwarranted and

unpersuasive. Even without the additional requirement of

individual bargaining power, Congress's enactment strikes us as a

reasonable effectuation of its purpose. In any event, in limiting

the top-hat provision to a "select group of management or highly

compensated employees," Congress ensured that employees' interests

would be sufficiently protected. 

If more were needed — and we doubt that it is — we are

further counseled against the importation of a requirement of

individual bargaining power by the bizarre consequences that would

follow from it. Most important, that thesis implies that every

top-hat plan can be rendered noncompliant by demonstrating that a

single covered employee lacks individual bargaining power, no
None of the cases cited by the appellant purports to hold 9

that when an otherwise valid top-hat plan is offered to a "select

group of management or highly compensated employees," that plan

will lose its exempt status if any one of the covered employees

lacks individual bargaining power. To the extent that any of those

cases rely on an erroneous interpretation of the DOL opinion

letter, we respectfully decline to follow that interpretation.

-22-

matter the overall characteristics of the "select group of

management or highly compensated employees" to which he belongs. 

Such an absolutist construction clashes with the

essential nature of the top-hat provision, which has been

interpreted more generally to mean that not every member of the

select group need belong to the upper tier of management or fit

within the highest stratum of compensation. See, e.g., Demery, 216

F.3d at 289; Guiragoss, 444 F. Supp. 2d at 663-64; Belka v. Rowe

Furniture Corp., 571 F. Supp. 1249, 1252-53 (D. Md. 1983). These

cases recognize the sensible proposition that it is the

configuration of the group as a whole that controls. If, as the 9

appellant suggests, Congress was singularly concerned with an

individual's ability to fend for himself or herself, we think it

unlikely that Congress would have framed the statute in terms of

"groups" at all.

We add a coda. As said, the district court determined

that the surgeons, as a group, enjoyed bargaining power. See

Alexander, 467 F. Supp. 2d at 147. Because neither party has

either challenged that determination or questioned its necessity,

we have assumed for argument's sake that collective bargaining
-23-

power might conceivably be a prerequisite for a top-hat plan. We

think it is wise, however, to note our grave doubts about the

correctness of this assumption.

The two main reasons underpinning our holding that there

is no requirement of individual bargaining power to qualify for the

top-hat provision — (i) that neither the text nor the legislative

history of the statute contains the slightest hint that Congress

contemplated that courts would consider employees' ability to

bargain over the terms of their deferred compensation plans and

(ii) that the DOL opinion letter does not presume to interpret the

statute — militate just as strongly against importing a requirement

of collective bargaining power into the top-hat provision.

Although Congress's rationale for fashioning the exemption was that

the members of a "select group of management or highly compensated

employees" could fend for themselves, the statute, by its terms,

does not purport to require proof of power of any sort. In such

circumstances, it would be highly unorthodox to convert a rationale

(like the one set forth in the DOL opinion letter) into an

independent statutory test.

III. CONCLUSION

For the reasons elucidated above, we uphold the judgment

below. Consequently, the appellant's prayer for attorneys' fees

under 29 U.S.C. § 1132(g) must be denied as moot.
-24-

Affirmed.