### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-3325

S HEILAR S MITH , et al

., on behalf of themselves and all others similarly situated and on behalf of the OSF plans, Plaintiffs-Appellants

,

v.

OSF H EALTH C ARE S YSTEM , et al

., Defendants-Appellees,

and

U NITED S TATES OF A MERICA , Intervening-Appellee

.

____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 3:16-cv-00467-SMY-RJD — Staci M. Yandle

, Judge

.

____________________

A RGUED M AY 15, 2019

— D ECIDED A UGUST 13, 2019

____________________

Before W OOD , Chief Judge , and E ASTERBROOK and
H AMILTON , Circuit Judges

. H AMILTON , Circuit Judge . The decisive issue in this appeal is whether the district court ab used its discretion in granting2 No. 18-3325

summary judgment for defendants despite plainti ff ’s motion under Federal Rule of Civil Procedure 56(d) to postpone a summary judgment decision so that she could complete further discovery. District courts have considerable discretion in such case-management decisions, but that discretion is not unlimited. The record here shows, unfortunately, that the court’s denial of plainti ff ’s Rule 56(d) motion was an abuse of that discretion. The summary judgment motion was fi led long before discovery was to close; plainti ffwas pursuing discovery in a diligent, sensible, and sequenced manner; and thepending discovery was material to the summary judgment issues. The district court’s expl anation for denying a postponement overlooked the court’s earlier case-management and scheduling decisions and took an unduly narrow view of facts relevant to the case. We therefore vacate the grant of summary judgment and remand for further proceedings consistent with this opinion. We explain in Part I the role and de fi nition of the ERISA exemption for “church plans.” In Part II, we summarize the limited facts available to us about these parties and the merits of their dispute. In Part III, we address the standards for Rule 56(d) motions and potential reasons for denying them. We do not decide the merits of the part ies’ dispute, though we must discuss the merits along the way to provide context for the Rule 56(d) issue.

I. ERISA and the Exemption for Church Plans The underlying issue in the ca se is whether the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., applies at all to the pension plans o ff ered by defendant OSF HealthCare System, a religious nonpro fi tNo. 18-3325 3

organization that operates eleven hospitals in Illinois and Michigan.ERISA sets minimum standards for the pension and welfare bene fi t plans o ff ered by private employers. 29 U.S.C. §§ 1001(a), 1002(1)–(2). Congress en acted ERISA in response to a “rapid and substantial” increase in employee bene fi tplans that were lacking in “adequate safeguards”—with often-catastrophic results for employees and their families—as employees and their bene fi ciaries lost anticipated bene fi ts because of unsound and unstable plans, unfair vesting provisions, and termination of plans before bene fi ts had been funded. 29 U.S.C. § 1001(a).The Supreme Court has described ERISA as a “‘comprehensive and reticulated statute’ with ‘carefully integrated civil enforcement provisions.’” LaRue v. DeWol ff

, Boberg & Assocs., Inc. , 552 U.S. 248, 258 (2008), quoting Massachuse tt s Mutual Life Ins. Co. v. Russell , 473 U.S. 134, 146 (1985). At bo tt om, the goal of ERISA is to ensure the delivery of promised benefi ts. To achieve that goal, ERISA imposes minimum standards for bene fi t funding and vesting, grievance and appeals processes, and fi duciary duties. 29 U.S.C. §§ 1053, 1083, 1104, 1132. Participants of bene fi t plans that are governed by ERISA have the right to sue for bene fi ts and breaches of fi duciary duty. 29 U.S.C. §§ 1132, 1109. If ERISA plans are terminated without adequate funding, some payments of bene fi ts can be available through the Pension Bene fi t Guaranty Corporation. 29 U.S.C. § 1302.Congress, however, exempted certain categories of employee bene fi t plans from ERISA. One is the “church plan”exemption at issue here. 29 U.S.C. § 1003(b)(2). Since enactment in 1974, ERISA has provided that it “sha ll not apply to4 No. 18-3325

any employee bene fi t plan if...such plan is a church plan (as de fi ned in section 1002(33) of this title).” Id. The de fi nition in § 1002(33) originally applied on ly to plans “established and maintained” for the employees of churches or associations of churches, so that it would not have applied, for example, to hospitals a ffi liated with churches. Advocate Health Care Network v. Stapleton , 137 S. Ct. 1652, 1656 (2017); 29 U.S.C.§ 1002(33)(A). In 1980, Congress amended the church plan exemption. Under the amended version, the exemption extends not only to plans for employees of churches but also to plans for employees of church-a ffi liated organizations. 29 U.S.C. § 1002(33)(C)(ii)(II).

Central to this case, the am endment added the following language:A plan established and maintained for its employees (or their bene fi ciaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whethera civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement bene fi ts or welfare bene fi ts, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches. 29 U.S.C. § 1002(33)(C)(i). That ’s “a mouthful,” as the Supreme Court said, but “to digest it more easily, note that everything after the word ‘organizatio n’ in the third line is just a (long-winded) description of a particular kind of church-No. 18-3325 5

associated entity.” Advocate Health , 137 S. Ct. at 1656. The Court referred to the church-asso ciated entity as a “principalpurpose organization,” id ., and for clarity’s sake, so do we.

In Advocate Health , the issue was whether the church plan exemption depends on who fi rst established the plan. The Supreme Court held: “Under the best reading of the statute, aplan maintained by a principal-purpose organization ... quali fi es as a ‘church plan,’ regard less of who established it.” Id. at 1663. The language in § 1002(33)(A) and (C)(i) thus makes the church plan exemption available to pension plans and other employee bene fi t plans established by church-associated entities, such as church-a ssociated hospitals, where the plans are maintained by prin cipal-purpose organizations. Id. We now turn to the facts of this case, where the central issues on the merits are who quali fi es as a principal-purpose organization and what it means to “maintain” or “administer” an employee bene fi t plan.

II. The Parties, Their Pension Plans, and Their Dispute

The Sisters of the Third Orde r of Saint Francis, a Roman Catholic organization, founde d the OSF HealthCare System in 1880. OSF is a nonpro fi t Catholic healthcare system that provides free or discounted care to indigent patients. The Sisters of the Third Order of Saint Francis is the only member of OSF. The Order maintains authority over the system through OSF’s governing documents and the canonical and civil guidelines pertaining to church property. In 2014, OSF merged with another Catholic hospital, St. Anthony’s Health Center, with the permission of the Holy See. Prior to the merger, St. Anthony’s was run by the Sisters of St. Francis of theMartyr of St. George. We refer to these organizations collectively as “OSF.”6 No. 18-3325

The parties agree that OSF is associated with a church. OSF’s operation is intertwined with the Roman CatholicChurch. For example, among several other religious requirements not relevant here, OSF must seek approval from the Church for loan and debt fi nancing, is subject to oversight bythe bishops of the dioceses in which it operates, and is recognized by the O ffi cial Catholic Directory as a Catholic Institution. OSF and St. Anthony o ff ered pension plans to their employees before the merger. Afte r the merger, the OSF and St. Anthony’s pension plans remain ed distinct. The Plans have approximately 19,285 participants between them. The Plansare now closed to new participants and have stopped accruing further bene fi ts. The OSF plan has 17,946 participants and the St. Anthony’s plan has 1,339. Both plans are now administered as ERISA-exempt church plans. 1

OSF contends that the St. Francis Plan and the St. Anthony’s Plan are administered by the Sisters of the Third Order of St. Francis Employees’ Pension Plan Administrative Commi tt ee and the Saint Anthony’s Health Center Retirement Commi tt ee, respectively, though the two have identical

1 Both plans received private letter rulings from the IRS finding that they are church plans under 26 U.S.C. § 414(e). Upon taxpayers’ requests, the IRS may issue private letter rulings interpreting and applying tax laws to the specific facts of a taxpayer’s situation. 26 C.F.R. § 601.201(a)(2). Theyare not issued after formal adjudication or notice-and-comment procedures that may warrant substantial deference from courts. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (less formal agency determinations deserve less deference from courts). IRS regulations provide that private letter rulings are not preceden tial. See 26 C.F.R. § 301.6110–7(b); Bankers Life and Casualty Co. v. United States , 142 F.3d 973, 978 (7th Cir. 1998).No. 18-3325 7

memberships. (We refer to them as the “Commi tt ees.”) OSF contends that each Commi tt ee quali fi es as a principal-purpose organization within the meaning of § 1002(33)(C)(i), so that the Plans need not comply with ERISA at all.

Plainti ff Sheilar Smith, a former employee and participant of one of the OSF pension plans, sued on behalf of herself and other similarly situated plainti ff s in the Southern District of Illinois. She alleged that the Plans are not eligible for the church plan exemptio n because (a) the Commi tt ees are not “principal-purpose organizations” within the meaning of ERISA, and (b) even if they were, the church plan exemption itself is unconstitutional. She alleged that OSF has violated ERISA by allowing the Plans to become severely underfunded, with the OSF Plan holding assets su ffi cient to fund only 56% of accrued bene fi ts and the St. Anthony’s plan only54%. She alleged that OSF also failed to follow the proper notice, disclosure, and managerial requirements, and breached
its fi duciary duties.

The heart of the merits debate is whether the Commi tt ees can qualify as principal-purpos e organizations at all. Smith

o ff ers several layers of argument. She contends that an internal commi tt ee of a church-associated organization cannot qualify at all as such an organization. She also contends that mere “administration” of a plan does not necessarily equate to “maintaining” the plan, as re quired by statute, which she believes requires the authority to terminate or modify the plan. And she argues that the Commi tt ees in this case may not even actually administer these Plans, pointing to evidence that the Commi tt ees meet only rarely and brie fl y. Finally, she contends that even if these Pl ans qualify for the church plan exemption, the exemption itself violates the Establishment8 No. 18-3325

Clause of the First Amendment. OSF counters that the plain language of the statute, relevant case law, legislative history,and common sense all permit it, as a church-associated organization, to delegate administ ration of the Plans to the Commi tt ees, and that the exemption fi ts comfortably within First Amendment law.

III. The Rule 56(d) Issue

A. Rule 56(d) Federal Rule of Civil Procedure 56(b) provides that, unless local court rules or a case-speci fi c order provide otherwise, a party may fi le a motion for summary judgment at any timeuntil 30 days after the close of all discovery. Rule 56(d) provides that, after a party moves for summary judgment: If a nonmovant shows by a ffi davit or declaration that, for speci fi ed reasons, it cannot present facts essential to justify its opposition, the court
may: (1) defer considering the motion or deny it; (2) allow time to obtain a ffi davits or declarations or to take discovery; or (3) issue any other appropriate order. The mere fact that discovery is incomplete is not enough to prevent summary judgment. Farmer v. Brennan , 81 F.3d 1444, 1450 (7th Cir. 1996), citing Resolution Trust Corp. v. North Bridge Associates , 22 F.3d 1198 (1st Cir. 1994). A party seeking relief under Rule 56(d) must show by a ffi davit or declaration speci fi c reasons discovery should be extended, which requires more than a fond hope that more fi shing might netNo. 18-3325 9

some good evidence. Davis v. G.N. Mortgage Corp. 396 F.3d 869, 885 (7th Cir. 2005) (a ffi rming denial of 56(d) motion when plainti ff s’ request was “based on nothing more than mere speculation”); Kallal v. CIBA Vision Corp. , 779 F.3d 443, 446 (7th Cir. 2015) (a ffi rming denial of Rule 56(d) request for additional discovery where party did not submit a ffi davit as required). In addition, a court n eed not delay decision on a summary judgment motion to allow time for discovery on an obviously meritless claim or defense. Arnold v. Villarreal , 853 F.3d 384, 389 (7th Cir. 2017). 2 Motions for summary judgment have become so common in modern federal civil practi ce that case-management plans often assume that one or even more motions will be fi led. Parties and district courts ordin arily set schedules not only fortrial dates but also for discovery and motion practice that allow time for summary judgment motions and the discovery needed to fi le or oppose them. See Fed. R. Civ. P. 16(c)(2)(E) & (F) (topics for pretrial confer ence). Accordingly, decisions on Rule 56(d) motions—whether granted or denied—can be a critical tool in fair case management. Appellate courts review decisions on Rule 56(d) motions for abuse of discretion. Sterk v. Redbox Auto mated Retail, LLC

, 770 F.3d 618, 622–23 (7th Cir. 2014). “As is true for most matters relating to discovery, the district court has substantial discretion in ruling on a [Rule 56(d)] motion.” Farmer, 81 F.3d at

2 Before the 2010 amendments to th e Federal Rules of Civil Procedure, Rule 56(d) was 56(f). Because no substantive changes were made to thisportion of the rule, cases that analyzed the old Rule 56(f) remain applicable, but we describe them using the current designation of 56(d).10 No. 18-3325

1449. This latitude has its limits, however. Id. at 1450–51 (vacating summary judgment). Appellate courts often remand a denial of additional time for discovery when the motion for summary judgment is fi led before the close of discovery, especially if there are pending discovery disputes. Farmer, 81 F.3d at 1450–51 (district court abused discretion by denying Rule 56(d) motion that sought opportunity to conduct discovery under new legal standard after remand from Supreme Court); see also CenTra, Inc. v. Estrin , 538 F.3d 402, 420 (6th Cir. 2008) (vacating summary judgment as premature when plainti ffwas denied any opportunity for discovery on material issues); Burlington Northern Santa Fe Railroad Co. v. Assiniboin e & Sioux Tribes of Fort Peck Reservation , 323 F.3d 767, 773–74 (9th Cir. 2003) (denial of Rule 56(d) motion was abuse of discretion: when “a summary judgment motion is fi led so early in the litigation, before a party has had any realistic oppo rtunity to pursue discovery relating to its theory of the ca se, district courts should grant any Rule [56(d)] motion fairly freely”); Wichita Falls v. Banc One , 978 F.2d 915, 920 (5th Cir. 1992) (reversing denial of Rule56(d) motion: “When a party is seeking discovery that is germane to the pending summary judgment motion it is inequitable to pull out the rug from under them by denying such discovery.”). For example, in the D.C. Circuit, summary judgment isconsidered premature unless all parties have had a full opportunity to conduct discovery, and the court has wri tt en that Rule 56(d) motions “requesting ti me for additional discovery should be granted ‘almost as a ma tt er of course unless the non-moving party has not diligently pursued discovery of the evidence.’” Convertino v. United St ates Dep’t of Justice , 684 F.3dNo. 18-3325 11

93, 99 (D.C. Cir. 2012), quoting Berkeley v. Home Ins. Co. , 68 F.3d 1409, 1414 (D.C. Cir. 1995). This approach is not unique. See In re PHC, Inc. Shareholder Litigation , 762 F.3d 138, 145 (1st Cir. 2014) (premature for district court to consider summary judgment in light of plainti ff s’ Rule 56(d) motion when pending discovery requests were not yet answered); Jones v. Blanas

, 393 F.3d 918, 930 (9th Cir. 2004) (n oting that summary judgment is disfavored if discovery is incomplete: “summary judgment in the face of reques ts for additional discovery is appropriate only where such di scovery would be ‘fruitless’ with respect to the proof of a viable claim”); International Shortstop, Inc. v. Rally ʹ s, Inc. , 939 F.2d 1257, 1267 (5th Cir. 1991) (request for additional time to conduct discovery should be granted “almost as a ma tt er of course” when court learns the “diligent e ff orts to obtain evidence from the moving party have been unsuccessful”). We need not go as far as “almost as

a ma tt er of course,” but these precedents emphasize the importance of allowing a party the opportunity to take meaningful discovery before granting summary judgment against her. Rule 56(d) itself requires an a ffi davit or declaration giving speci fi c reasons why the party canno t present facts essential to opposing a motion for summary judgment. Plainti ffsatisfi ed that requirement here. Th e cases discussed above show that the sound reasons for denying a properly supported Rule56(d) motion most often are either (1) the moving party’s failure to pursue discovery diligen tly before the summary judgment motion, or (2) the apparent futility of the requested discovery.In this case, the district court’s brief explanation for denying plainti ff ’s Rule 56(d) motion invo kes both reasons. Here12 No. 18-3325

was the explanation, which was included in the court’s ruling on the merits of summary judgment:

As an initial ma tt er, Plainti ff s argue that Defendants’ motion for summary judgment was fi led prematurely. F.R.C.P. 56(d) permits, butdoes not require, the Court to defer consideration of a summary judgment motion or to allowadditional time for discovery, among other options. While there are numerous areas of inquiry that Plainti ff s state they would have explored prior to the fi ling of summary judgment motions, those pertinent to the instant motion havebeen at issue from the outset of this case. Although Defendants fi led for summary judgment well before the extended discovery deadline, Plainti ff s had ample time and opportunity to conduct discovery relevant to the issues raised in Defendants’ motion. As such, the Motion is not premature. Smith v. OSF Healthcare System , 349 F. Supp. 3d 733, 739–40 (S.D. Ill. 2018). In a later footnote, the court brie fl y discussed Smith’s assertion that disco very could show the Commi tt ees were not actually the ones administering the plans. The court seemed to view such discovery as futile, saying that “the question is not whether the Plan Commi tt ees are doing their jobs well or excessively delegating their authority, but rather whether the structure satis fi es the requirements of the church plan de fi nition.” Id. at 743 n.4. In our view, however, plainti ff established a strong record of diligence, and at least some of the additional discovery sought in her Rule 56(d) motion would not have been futile.No. 18-3325 13

B. DiligenceThe district court’s primary reason for denying the plainti ff ’s Rule 56(d) motion was its view that plainti ff had failed to act diligently to conduct the discovery she said she needed to respond to the motion for summary judgment. The district court pointed out correctly that the need for the discovery shesought, such as details of plan administration, had been apparent from the early stages of the case. The court’s explanation overlooked, however, the earlier delays imposed on plainti ffby the court itself and by the defendants. The explanation also overlooked the plainti ff ’s sensible approach to staging discovery so that, for example, document discovery would be essentially complete before plainti fftook depositions of key witnesses (thus mini mizing the risk that seconddepositions would be needed if important documents surfaced after the depositions). To explain our resolution of th is issue, we need to review the proceedings in the district court in some detail. Smith fi led her complaint on April 27, 2016. Defendants sought a change of venue, which was denied. The parties then agreed, as is common, to a sequenced discovery schedule for document production, interrogatories, electronically stored information, and depositions. See Fed. R. Civ. P. 16(c), 26(f). The magistrate judge issued a scheduling orde r on September 26, 2016 with a discovery cut-o ff of November 2017 and a trial date in March 2018. Yet just three days after the co urt issued that agreed scheduling order, defendants moved to stay all discovery pending ruling on a petition for a writ of certiorari in one of the cases that the Supreme Court eventually heard as Advocate Health

. The district court denied that stay, and discovery began, as14 No. 18-3325

indicated by the court’s docket entry se tt ing a discovery dispute conference for January 5, 2017. See Dkt. 111, at 11, 21–22 (court discussing pending discovery requests and disputes). In the meantime, however, the Supreme Court had granted certiorari in the Advocate Health cases on December 2, 2016. On January 6, 2017, defendants moved to stay discovery and all court proceedings. Plainti ff s objected to a complete stay. The court concluded that it made sense to continue with document discovery but to delay expensive depositions until the Supreme Court could rule in Advocate Health . Dkt. 111 at 38–
41. The Supreme Court decided Advocate Health on June 5, 2017. The district court then stayed all discovery until July 25, 2017, and ordered the parties to submit a revised scheduling order. The new, agreed schedul ing order was issued August 10, 2017, with discovery to be completed by September 6, 2018, dispositive motions due by September 21, 2018, and a bench trial set for January 7, 2019. The parties resumed discove ry, but not everything was done at once. OSF produced additional documents between the end of August and November 10, 2017, but the parties had substantial disagreements about OSF’s compliance with pending requests. See Dkt. 162-1 ¶¶ 7, 10. In November and December, plainti ff ’s counsel sent OSF two le tt ers on discovery issues, including the producti on of electronically stored information, with an emphasis on emails related to plan administration. Dkt. 162-1 ¶11; Dkt. 162-3. During this period, counsel also held a telephone conference to discuss their disagreements over the pending requests for production of documents and the search terms to be used for the electronic records. Dkt. 162-1 ¶12.No. 18-3325 15

On December 22, 2017, plainti ff ’s counsel sent three deposition notices to OSF with a le tt er explaining the requested discovery she still had not received. Dkt. 162-5. She said in the le tt er that if the parties did not reach a resolution by January 4, 2018, she would seek a resolution before the magistrate judge. OSF made additional production of documents fi vedays later but did not address the issues raised in the December 22 le tt er. Then, on December 29, 2017, a week after plainti ff ’s counsel sent that le tt er, OSF fi led its motion for summary judgment. The motion was fi led almost nine months before thescheduled close of discovery, and despite the pending deposition notices and unresolved issues surrounding production of electronically stored info rmation. OSF’s motion argued that further discovery would be pointless in light of the Supreme Court’s decision in Advocate Health and the Tenth Circuit’s then-recent decision in Medina v. Catholic Health Initiatives , 877 F.3d 1213 (10th Cir. 2017). In response, plainti ff quickly moved under Rule 56(d) to defer brie fi ng on the motion for su mmary judgment. Her motion was supported by counsel’s a ffi davit providing speci fi c reasons and needs for additional discovery. She told the court that the parties had pending di scovery disputes, that she had yet to obtain documents and emails within the defendants’control, and that she had served notices for several depositions. She also identi fi ed the types of the information she needed to discover, including information from emails and depositions that could show the Commi tt ees were not the ones administering the plans at all. Plainti ff also pointed out that defendants had o ff ered a ffi davits in their motion for summary judgment from expert witnesses who, before the motion16 No. 18-3325

for summary judgment was fi led, had not yet even been disclosed to plainti ff ’s counsel, let alone subject to depositions. Given this history, we do not see a basis for saying that plainti ff had failed to pursue discovery diligently. We assume plainti ff ’s counsel knew from the outs et that they would probably need to take the depositions that they noticed in December 2017 and that were the subj ect of her Rule 56(d) motion.Counsel and their client should not be penalized with dismissal, however, for not having taken those depositions earlier. Depositions are expensive, as th e district court acknowledgedwhen it stayed depositions in early 2017. Lawyers in paperheavy cases like this one know that it generally makes sense not to take a witness’s deposition until they have the relevant documents in hand. That’s why the parties staged discovery as they did in this case, of course, and why it would have been premature to take the depositions before the plainti ff ’s deadline for responding to defendants’ very early summary judgment motion. 3

C. Relevant or Futile? Another sound reason for denying a Rule 56(d) motion may be that the additional discovery being sought would be futile. As this appeal shows, however, it can be risky to deny

3 In the interests of fairness and economy, we encourage district courts to act promptly on pending motions un der Rule 56(d) because of their effects on briefing schedules for summary judgment motions. In this case, the court did not actually deny plaintiff’s motion until it also ruled on the summary judgment motion. As a result , plaintiff had to brief the summaryjudgment motion without knowing the court’s view of the Rule 56(d) motion. A belated grant of a Rule 56(d) motion or a reversal of a denial of such a motion can waste time and money as counsel must in essence brief the summary judgment motion twice.No. 18-3325 17

discovery based on a theory th at the law makes the discovery irrelevant, especially where that legal proposition is contested and the area of law is evolving qu ickly. If a district court denies a Rule 56(d) motion based on an erroneous view of the applicable substantive law, and thus of the relevance of the additional discovery sought, an abuse of discretion is likely. See Farmer v. Brennan , 511 U.S. 825, 849 & n.10 (1994) (notingthat district court had denied Rule 56(d) motion based on erroneous view of law), cited in Farmer, 81 F.3d at 1448 (appeal after remand). The question of futility requires us to dip into the merits, at least tentatively. Plainti ffSmith herself makes an argumenton the merits that would eliminate any need for further discovery. She argues that OSF’s Plan Commi tt ees cannot qualifyas principal-purpose organizations because they are not juridical entities legally distinct from OSF itself. We disagree with that point and believe that internal bene fi ts commi tt ees like OSF’s can qualify as “organizations” that could, assuming theother statutory requirements were met, serve as principalpurpose organizations under § 1002(33)(C)(i). The statute notes parenthetically that such an “organization” may be “a civil law corporation or otherwise.” Id. That last word is capacious. It does not require that the organization in question be any particular type of non-corporate legal entity nor, indeed, an entity legally separate from the plan sponsor at all.On a related note, under any reading of the term “principal purpose,” a commi tt ee constituted speci fi cally to manage employee bene fi t plans could qualify. The purpose of the organization maintaining or admini stering a church plan need not be the same as that of the plan sponsor itself. After all, no pension sponsor ever has the provision, let alone18 No. 18-3325

maintenance, of a pension or other employee bene fi t plan as its principal purpose. Its principal purpose is the enterprise that employs the people who participate in the bene fi t plans. Further discovery on remand, however, will not be futile. The district court here believed—leaning heavily on the Tenth Circuit’s opinion in Medina v. Catholic Health Initiatives , 877 F.3d 1213 (10th Cir. 2017)—that no amount of discovery could save plainti ff ’s case. The district court wrote that Medina was “well-reasoned and essentially ‘on all fours’ with this case” and followed Medina in granting summary judgment.

Medina presented similar issues in applying the ERISA church plan exemption to a hospital chain a ffi liated with the Roman Catholic Church, where the plans were administered by internal commi tt ees established by the employer. 877 F.3d at 1220. The Tenth Circuit applied the statute’s requirements through a three-step inquiry. The fi rst step asks whether the entity seeking to use the chur ch plan exemption under the principal-purpose option is itself “a tax-exempt nonpro fi t organization associated with a church.” Id. at 1222. If it is, the second step asks whether “the entity’s retirement plan [is] maintained by a principal-purpose organization? That is, isthe plan maintained by an organization whose principal purpose is administering or funding a retirement plan for entity employees?” Id. If that answer is also yes, the third step askswhether “that principal-purpose organization [is] itself associated with a church.” Id. Applying this test, the Tenth Circuit determined that commi tt ees assigned to administer the religious nonpro fi t’s bene fi t plans can constitute principal-purpose organizations and a ffi rmed summary judgment for the hospital system. Id. at 1226. Medina further held that the church plan exemption does not violate the EstablishmentNo. 18-3325 19

Clause. Id. at 1234, discussing Lemon v. Kur tz man , 403 U.S. 602, 612 (1971).

Medina does not justify the denial of plainti ff ’s Rule 56(d) motion for two related reasons. First, of course, Medina was decided on a motion for summary judgment fi led after theparties completed discovery, providing a more complete factual record. Second, we are not pr epared, at this point, to commit ourselves to the Medina test, or at least to this district court’s interpretation of Medina , under which, for example, it would not ma tt er if the Commi tt ees formally charged with plan administration did not actually administer them. See Smith , 349 F. Supp. 3d at 743 n.4. In this case, which presents at least genuine issues of material law , it would be more prudent to know more about the po tentially relevant facts before deciding they are not relevant. For example, recall that 29 U.S.C. § 1002(33)(C)(i) provides that a “plan established and maintained for its employees ... includes a plan maintained by an organization ... the principal purpose or function of which is the administration or funding of a plan or program fo r the provision of retirement bene fi ts or welfare bene fi ts....” This statutory language of§ 1002(33)(C)(i) might reasonably be read to imply that a principal-purpose organization must actually administer the plan. The district court rejected this argument in a footnote, stating that “the question is not whether the Plan Commi tt ees are doing their jobs well or excessively delegating their authority, but rather whether the structure satis fi es the requirements of the church plan de fi nition.” 349 F. Supp. 3d at 743 n.4. We do not share, at least at this point, that con fi dence that only paper formalities ma tt er. In light of the language and purpose of the statute, one arguable reading of § 1002(33)(C)(i) is that a20 No. 18-3325

Commi tt ee’s excessive delegation ofits authority and responsibility could amount to a failure to “maintain” the Plan—a concept which in its ordinary meaning encompasses, but is not necessarily limited to, “administration or funding”—as required by the statute.

Plainti ffSmith argues that OSF has thus far refused to produce evidence that could show whether the Commi tt ees that were at least formally charged with administering these Plans actually did so in reality. She has o ff ered evidence that the Commi tt ees met rarely and brie fl y. The Commi tt ee for the OSF plan met for a total of only seventy minutes over an eightyear period. The Commi tt ee for the St. Anthony Plan met only twice from 2010 to 2017. Plainti ffargues that this evidence at least suggests that the commi tt ees may not be really administering the plans at all, making discovery of internal emails and other communications, and deposi tions of key personnel, vital to her ability to defend summary judgment. OSF acknowledged at oral argument that merely naming
a commi tt ee that never actually met or administered the plan would not be enough to satisfy the statute. OSF is not necessarily entitled to summary judgment just because it has produced documents showing how the Plans are supposed to be

run. If further discovery reveals, as a practical ma tt er, that the Commi tt ees exist only on paper, then it is possible the Plans are not actually exempt from ERISA. Accordingly, upon remand, the district court must allow relevant discovery and should then assess whether OSF’s Plan Commi tt ees did, in fact , serve as principal-purpose organizations qualifying the Plans for exemption from ERISA.

OSF o ff ers a couple of additional reasons to justify the denial of the Rule 56(d) motion. Itcontends that the search termsNo. 18-3325 21

proposed by plainti fffor electronic records amount to a proverbial fi shing expedition because they would reach every email ever sent by the Commi tt ees. This is not a convincing reason to deny all further discovery. Discovery was cut o ff , in

e ff ect, when the parties had barely begun to negotiate the search terms, let alone asked the court to resolve the dispute. In fact, Smith was still waiting for a response to her proposed custodian list and search terms for electronic discovery when OSF moved for summary judgment and discovery ended. OSF also cites plainti ff ’s failure to fi le a motion to compel as evidence that she was not diligently pursuing discovery. The argument only serves to emphasize how premature this summary judgment decision was. Parties are expected tomeet and confer at least once to resolve their discovery disputes before requesting help from the court. Fed. R. Civ. P. 37(a)(1). A party’s compliance wi th that requirement should not be held against her in deciding a Rule 56(d) motion. 4

* * * Concurring in Advocate Health , Justice Sotomayor observed that organizations like OSF “bear li tt le resemblance to those Congress considered wh en enacting the 1980 amendment to the church plan de fi nition.” 137 S. Ct. at 1663. Smith has alleged OSF is underfunding its pension by nearly half, perhaps jeopardizing the bene fi ts of thousands of hospital and health-care employees who depend upon these Plans.

4 We have not forgotten Smith’s Establishment Clause argument, which she presents as an as-applied ch allenge. Because the factual picture remains too underdeveloped to decide even the application of the statute, we do not address the constitutional question now. Those issues can await further development.22 No. 18-3325

With such high stakes, bene fi ciaries are entitled to conduct meaningful discovery before the courts decide legal issues such as whether formal structures are su ffi cient to satisfy the church plan de fi nition, regardless of day-to-day realities. The judgment of the districtcourt is VACATED and this case is REMANDED for further proceedings consistent with this opinion.