Alfred E. Gallade - Page 14

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          direct us to any authority that supports the argument that his              
          waiver in the instant cases is valid so long as they were                   
          knowingly and voluntarily made.                                             
               We agree that when the antialienation rule does not apply,             
          any waiver or alienation must be knowingly and voluntarily made.            
          Pursuant to ERISA section 201(2), the antialienation rule of                
          ERISA section 206(d)(1) does not apply to “a 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”; i.e., a “top hat”              
          plan.  29 U.S.C. sec. 1051(2) (1994); see also Modzelewski v.               
          Resolution Trust Corp., 14 F.3d 1374, 1377 n.3 (9th Cir. 1994)              
          (referring to the characteristics of a “top hat” plan).  However,           
          the plan under consideration is overfunded and covers both                  
          petitioner and rank and file employees.  Therefore, whether                 
          petitioner’s waiver was knowingly or voluntarily made is of no              
          consequence because the plan was not a “top hat” plan.  Ferris v.           
          Marriott Family Restaurants, Inc., supra.                                   
               Petitioner relies heavily on the fact that the PBGC issued a           
          “Notice of Sufficiency” to GCI which stated that, insofar as it             
          was concerned, the Plan’s termination was acceptable.                       
          Petitioner’s argument assumes that any Government approval cures            
          a statutory defect.                                                         
               The PBGC was created to ensure that participants in private            
          pension plans would receive the benefits for which their                    

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