United States Court of Appeals For the First Circuit

No. 20-2064

CONSUMER DATA INDUSTRY ASSOCIATION,

Plaintiff, Appellee,

v.

AARON M. FREY in his official capacity as ATTORNEY GENERAL OF THE STATE OF MAINE; WILLIAM N. LUND in his official capacity as SUPERINTENDENT OF THE MAINE BUREAU OF CONSUMER CREDIT PROTECTION,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Barron and Selya, Circuit Judges, and Delgado-Hernández, District Judge.*

Christopher C. Taub for appellants. Chi Chi Wu, with whom Andrea Bopp Stark, Ariel Nelson, and Frank D'Alessandro were on brief for National Consumer Law Center, Maine Equal Justice, and Maine Coalition to End Domestic Violence, amici curiae. Jennifer Sarvadi, with whom Rebecca E. Kuehn, Ryan P. Dumais, and Hudson Cook LLP were on brief, for appellee. Misha Tseytlin, with whom Sean T.H. Dutton, Kevin M. LeRoy, David N. Anthony, Troutman Pepper Hamilton Sanders LLP, and Tara

* Of the District of Puerto Rico, sitting by designation. S. Morrissey were on brief for American National Financial Services Association and United States Chamber of Commerce, amici curiae.

February 10, 2022 DELGADO-HERNÁNDEZ, District Judge. In 2019, Maine’s

Legislature passed two laws that amended the Maine Fair Credit

Reporting Act,

et seq. ("Maine

Act"), to regulate the reporting of overdue medical debt and debt

resulting from economic abuse. After a facial preemption

challenge to the laws from an industry group representing credit

reporting agencies, the District Court held that both laws were

preempted under Section 1681t(b)(1)(E) of the Fair Credit

Reporting Act ("FCRA"),

et seq. We vacate and

reverse the District Court's judgment, and remand for further

proceedings addressing whether both laws may be partially

preempted by Section 1681t(b)(1)(E), and whether the economic

abuse debt reporting law may be separately preempted by Section

1681t(b)(5)(C).

I.

A. Background

Consumer credit reports play an important role in the

lives of individuals and in the economy. As the District Court

recognized, these reports influence whether, and on what terms, "a

person may obtain a mortgage, a credit card, a student loan, or

other financing." Consumer Data Indus. Ass'n. v. Frey,

, 13 (D. Me. 2020). Mindful of this role, "Congress

enacted the FCRA in 1970 as part of the Consumer Credit Protection

-3- Act 'to ensure fair and accurate credit reporting, promote

efficiency in the banking system, and protect consumer privacy.'"

Sullivan v. Greenwood Credit Union,

(1st Cir. 2008)

(quoting Safeco Ins. Co. of Am. v. Burr,

(2007)).

The FCRA "regulates the creation and the use of consumer report[s]

by consumer reporting agenc[ies] for certain specified purposes,

including credit transactions, insurance, licensing, consumer-

initiated business transactions, and employment." Spokeo, Inc.

v. Robins,

(2016) (alterations in original)

(internal quotation marks omitted).1

Before passage of the FCRA, "there was little

significant state regulation of the credit reporting industry."

2 Consumer Law Sales Practices and Credit Regulation § 534 (Sept.

2021). Since the passage of the FCRA, a number of states,

including Maine, have enacted legislation patterned after the

federal statute. Id. & n.3. The Maine Act was enacted in 1977.

See Fair Credit Reporting Act,

-54 (codified at

1Over the years, the FCRA has been subject to multiple amendments, including in 2018 to regulate the reporting of veterans' medical debt. See Fed. Trade Comm'n, 40 Years of Experience with the Fair Credit Reporting Act 1-16 (July 2011) "FTC Staff Report" (outlining history of FCRA and amendments); §1A Consumer Credit Law Manual §16.01, at 3-4, 7-14 (summarizing amendments); see, e.g., Economic Growth, Regulatory Relief, and Consumer Protection Act,

Stat. 1296, 1332- 35 (2018) (amending FCRA to address certain aspects of veterans' medical debt reporting).

-4-

et seq.); Equifax Servs.,

Inc. v. Cohen,

(Me. 1980) (describing

statute). The statute’s current version goes back to 2013. See

An Act to Update the Fair Credit Reporting Act Consistent with

Federal Law,

-62 (codified at

et seq.) It has been amended several times. Two

such amendments are at issue here, "An Act Regarding Credit Ratings

Related to Overdue Medical Expenses,"

(codified

at

-H(4)) ("Medical Debt

Reporting Act"), and "An Act to Provide Relief to Survivors of

Economic Abuse,"

-64 (codified at

-H(2-A)) ("Economic Abuse Debt Reporting

Act").2

The Medical Debt Reporting Act prohibits consumer

reporting agencies from reporting "debt from medical expenses on

a consumer credit report when the date of the first delinquency on

the debt is less than 180 days prior to the date that the debt is

reported." Me. Rev. Stat. tit. 10, § 1310-H(4)(A). Once a consumer

reporting agency receives "reasonable evidence . . . that a debt

from medical expenses has been settled in full or paid in full,"

it "[m]ay not report that debt" and "[s]hall remove or suppress

2 To facilitate review, we also refer to the two Amendments as the "Amendments."

-5- the report of that debt." Id. § 1310-H(4)(B). And if "the consumer

is making regular, scheduled periodic payments toward the debt

from medical expenses reported to the consumer reporting agency as

agreed upon by the consumer and the medical provider, the consumer

reporting agency must report that debt . . . in the same manner as

debt related to a consumer credit transaction is reported." Id.

§ 1310-H(4)(C). Driving the statute is the belief that, unlike

in the case of the purchase of a house or a car, medical debt is

usually unplanned and involuntarily incurred. See An Act

Regarding Credit Ratings Related to Overdue Medical Expenses:

Hearing on LD 110 Before the J. Standing Comm. on Health Coverage,

Ins. & Fin. Servs., 129th Legis. (2019) (statement of Rep. Chris

Johansen).

For its part, the Economic Abuse Debt Reporting Act

requires a credit reporting agency to reinvestigate a debt if the

consumer provides documentation that the debt is the result of

economic abuse. In the event the credit reporting agency

determines that the debt is the result of such abuse, it must

remove any reference to the debt from the consumer report. See

-H(2-A). For this purpose,

"economic abuse" is defined as,

causing or attempting to cause an individual to be financially dependent by maintaining control over the individual's financial resources, including, but not limited to,

-6- unauthorized or coerced use of credit or property, withholding access to money or credit cards, forbidding attendance at school or employment, stealing from or defrauding of money or assets, exploiting the individual's resources for personal gain of the defendant or withholding physical resources such as food, clothing, necessary medications or shelter.

See Me. Rev. Stat. Ann. tit. 19-A, § 4002(3-B). Underlying the

Economic Abuse Debt Reporting Act is the belief that many domestic

violence cases involve economic abuse. Accordingly, the statute

seeks to help domestic violence victims regain control of their

finances so they can leave abusive relationships and retake control

of their lives. See An Act to Provide Relief to Survivors of

Economic Abuse: Hearing on LD 748: Hearing before J. Standing Comm.

on Judiciary, 129th Legis. (2019) (statement of Jessica L. Fay).

B. Proceedings Below

In September 2019, the Consumer Data Industry

Association ("CDIA"), an international trade association whose

membership includes the "Big Three" credit reporting agencies –-

TransUnion, Equifax, and Experian –- and other agencies, sued

Maine's Attorney General, Aaron M. Frey, and the Superintendent of

the Maine Bureau of Consumer Credit Protection, William N. Lund

(collectively the "State of Maine"), claiming that the Amendments

are preempted by the FCRA.

-7- In April 2020, the parties filed cross-motions for

judgment on a stipulated record. CDIA argued in favor of a broad

reading of the FCRA, claiming that the Amendments are preempted by

15 U.S.C. § 1681t(b)(1)(E), and the Economic Abuse Debt Reporting

Act separately preempted by 15 U.S.C. § 1681t(b)(5)(C). See

Consumer Data Indus. Ass'n., 495 F. Supp. 3d at 19 (summarizing

arguments). To the contrary, the State of Maine argued that the

operative language should be read more narrowly, preempting state

law only for the specific or discrete subject matter of FCRA's

regulations. Id.

The District Court agreed with CDIA, concluding that the

Amendments are preempted by Section 1681t(b)(1)(E). See Consumer

Data Indus. Ass'n., 495 F. Supp. 3d at 19-21. Given that it so

concluded, the District Court declined to address CDIA's alternate

argument that the Economic Abuse Debt Reporting Act is also

preempted by Section 1681t(b)(5)(C). Id. at 21. This appeal

ensued.

II.

A. Standard of Review

When reviewing a district court's ruling on a motion for

judgment on a stipulated record, we review legal conclusions de

novo and factual findings for clear error. Thompson v. Cloud,

(1st Cir. 2014). Here, the dispute centers on the

-8- District Court's legal conclusion that the Amendments are

preempted, a topic to which we now turn.

B. Overview

The Supremacy Clause provides that federal law "shall be

the supreme Law of the Land." U.S. Const. art. VI, cl. 2. This

Clause gives Congress "the power to preempt state law." Capron

v. Off. of Att'y Gen. of Mass.,

(1st Cir. 2019).

In general, there are "three different types" of preemption –

"express," "conflict," and "field." Murphy v. Nat'l Collegiate

Athletic Ass'n,

(2018). Express preemption

occurs "when congressional intent to preempt state law is made

explicit in the language of a federal statute." Tobin v. Fed.

Exp. Corp.,

(1st Cir. 2014). Conflict preemption

takes place when state law imposes a duty that is "inconsistent –

i.e., in conflict – with federal law." Murphy,

. Field preemption comes about when federal law occupies a

field of regulation "so comprehensively that it has left no room

for supplementary state legislation."

In this setting, our inquiry reduces to whether the

Amendments are swept into the maw of FCRA preemption, and in

particular, that of express preemption. We concentrate on

congressional intent, "the touchstone" of any effort to map the

boundaries of an express preemption clause. Tobin, 775 F.3d at

-9- 452. That intent may be "explicitly stated in the statute's

language or implicitly contained in its structure and purpose."

Cipollone v. Liggett Grp., Inc.,

(1992). "To

illuminate this intent, we start with the text and context of the

provision itself." Tobin,

.

C. Scope of Preemption

Congress formulated a general rule against preemption in

the FCRA. To this end, the FCRA,

[e]xcept as provided in subsections (b) and (c), does not annul, alter, affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, or for the prevention or mitigation of identity theft, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency.

15 U.S.C. § 1681t(a). Simultaneously, Congress provided for

exceptions to this general rule. One of the exceptions is set in

Section 1681t(b)(1)(E), which reads,

No requirement or prohibition may be imposed under the laws of any State‒ (1) with respect to any subject matter regulated under . . . . (E) section 1681c of this title, relating to information contained in consumer reports, except that this subparagraph shall not apply to any State law in effect on September 30, 1996.

-10- 15 U.S.C. § 1681t(b)(1)(E) (emphasis added). Section 1681c

details specific information that must be excluded from consumer

reports, see 15 U.S.C. § 1681c(a)(1)-(8), as well as information

that must be disclosed in consumer reports, see 15 U.S.C.

§ 1681c(d)-(f).

The parties disagree over how broadly the phrases

"relating to information contained in consumer reports" and "with

respect to any subject matter regulated under [Section 1681c]"

should be understood. CDIA homes in on the phrase "relating to.

"And because the Amendments impose requirements or prohibitions

that relate to information contained in consumer reports, CDIA

claims they are preempted by the FCRA.

We are not persuaded by CDIA's argument that Section

1681t(b)(1)(E) preempts all state laws "relating to information

contained in consumer reports," regardless of whether they

regulate subject matter regulated by Section 1681c. That is not

the most natural reading of the statute's syntax and structure.

Congress drafted the line breaks in the statute so that a sentence

describing what was preempted as well as the phrase "subject matter

regulated under" would be completed by reference to a statutory

section or subsections, suggesting that it wanted to give the

statutory references a functional role in describing the regulated

"subject matter". Such an approach also makes intuitive sense

-11- because -- apart from field preemption, for which there is no

persuasive evidence here -- the usual function of preemption

provisions is to protect Congress' enactments from interference by

state laws. Had Congress intended the "relating to" phrase alone

to delimit the subject matter preempted, it could have drafted the

statute differently, with the "relating to" clause directly

following "subject matter" and setting off references to statutory

sections with a comma.

The "relating to" clause can be plausibly read either as

purely descriptive of the content of the statutory provisions or

as modifying "subject matter" jointly with "regulated under

section 1681c." In either case, though, the effect is the same:

the content of the statutory provision plays a functional role in

defining the scope of the subject matter preempted. By contrast,

CDIA's proposed interpretation -- which treats the phrase "subject

matter" as defined only by the phrase "relating to" -- renders the

entire phrase, "regulated under section 1681c" surplusage. A

statute, however, ought to be construed in a way that "no clause,

sentence, or word shall be superfluous, void, or insignificant."

Duncan v. Walker,

(2001) (quoting Market Co. v.

Hoffman,

(1879)).

Furthermore, the impact of adopting CDIA’s

interpretation would not be isolated. Congress used the same

-12- statutory structure as that found in Section 1681t(b)(1)(E)

throughout Sections 1681t(b)(1)(A)-(K). Thus, embracing CDIA's

construction would make reference to all of the provisions listed

in those sections surplusage, contrary to the well-known canon

that, if possible, "every word and every provision" in a statute

is to be given effect, none should be ignored, and none should be

given an interpretation that causes it to have no consequence.

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 174 (2012). Each word Congress uses "is there for

a reason." Advocate Health Care Network v. Stapleton,

(2017).

In the statutory provisions listed in Section

1681t(b)(1), Congress has legislated extensively but often

narrowly - addressing particular kinds or uses of information or

particular practices. Not only would CDIA's proposed

interpretation render the references to the statutory provisions

surplusage but it would also disregard the care and specificity

with which Congress drafted those provisions.

That leads to the other component of this statutory

structure, Section 1681t(b)(1)(E) and its mandate that no

requirement or prohibition is to be imposed under the laws of any

State "with respect to" any subject matter regulated under Section

1681c. In Dan’s City Used Cars, Inc. v. Pelkey,

-13- (2013), the Supreme Court considered the preemptive scope of a

provision in the Federal Aviation Administration Authorization Act

("FAAAA"), which prohibited enforcement of state laws "related to

a price, route, or service of any motor carrier . . . with respect

to the transportation of property."

. The Court

observed that for purposes of FAAAA preemption, it is not

sufficient that a state law relate to the "price, route, or

service" of a motor carrier, but that it also concern a motor

carrier’s "transportation of property."

The Court concluded

that the phrase "with respect to" narrows the scope of preempted

subject matter to its referent or referents. See

Following the same path, Section 1681t(b)(1)(E)’s

mandate expresses Congress’ intent only to preempt those claims

that concern subject matter regulated under Section 1681c. See

Galper v. JP Morgan Chase Bank, N.A.,

(2d

Cir. 2015) (reaching similar conclusion in the context of identical

language in Section 1681t(b)(1)(F)); Fishback v. HSBC Retail

Servs. Inc., No. 12-0533,

, at *16 (D.N.M. June 21,

2013) (Section 1681t(b) preempts state law concerning specific

subject matters regulated under Sections 1681b, 1681c, 1681g,

1681i, 1681j, 1681m, 1681s and 1681w). 3 So construed, the

3 See also Elizabeth D. De Armond, Preventing Preemption: Finding Space for States to Regulate Consumer Credit Reports, 2016 B.Y.U. L. Rev. 365, 402 & n.176 (2016) ("While the FCRA uses

-14- preemption clause necessarily reaches a subset of laws narrower

than those that merely relate to information contained in consumer

reports.

CDIA argues that the phrase "any subject matter" is "a

descriptive phrase, not a limiting one," and that by including in

Section 1681t(b)(1)'s various subsections the specific provisions

of the FCRA such as Section 1681c, Congress merely made "reference

to the FCRA Section that governs the topic described." The plain

wording of a preemption clause "contains the best evidence of

Congress' pre-emptive intent." Sprietsma v. Mercury Marine,

(2002) (quoting CSX Transp., Inc. v. Easterwood,

(1993)). In Dan's City Used Cars, Inc., the

Supreme Court noted that the addition of the words "with respect

to" in the FAAAA "massively limit[ed] the scope of preemption"

ordered by the statute.

. And while the preemption

provision at issue here arises in a different federal statute,

there is no basis to conclude that the effect of the language in

each provision was not intended to be the same. See Galper,

(so noting in applying Dan's City Used Cars, Inc.'s

‘relating to’ in its preemption section, it does so only to describe the content of the specific preempting provisions. It uses 'with respect to' to describe the relationship between the state law and the preempting subject matter.").

-15- reading of the phrase "with respect to," to the same phrase under

the FCRA).

As well, if as CDIA claims, Congress intended to preempt

all state laws relating to information contained in consumer

reports, it could have easily so stated. Congress knows how to

preempt states from regulating entire subject areas. See e.g.,

Morales v. Trans World Airlines, Inc.,

(1992)

(explaining that "[t]o ensure that the States would not undo

federal deregulation with regulation of their own, the [Airline

Deregulation Act] included a pre-emption provision, prohibiting

the States from enforcing any law 'relating to rates, routes, or

services' of any air carrier" (quoting 49 U.S.C. app.

§ 1305(a)(1))).

Yet, that is not what happened with the FCRA. When

legislators "did not adopt obvious alternative language, the

natural implication is that they did not intend the alternative."

Advocate Health Care Network,

(internal

quotation marks omitted) (quoting Lozano v. Montoya Álvarez,

(2014)). A legislature "says in a statute what it

means and means in a statute what it says there." Conn. Nat'l

Bank v. Germain,

(1992). Besides, as noted

earlier, CDIA’s construction would divest the phrase "regulated

under" and the statutory references" of any real meaning, in

-16- contravention of the "surplusage" canon. We cannot treat those

words "as stray marks on a page - notations that Congress

regrettably made but did not really intend." Advocate Health Care

Network,

.

CDIA posits that "[i]f Congress intended states to be

able to adopt laws governing the content of consumer reports,"

then there would have been no need for the savings clause found in

Section 1681t(b)(1)(E). The clause provides that preemption as

set forth therein "shall not apply to any State law in effect on

September 30, 1996." Because the provision preempts states from

enacting laws with respect to subject matters regulated under that

Section, the clause serves to preserve pre-existing state laws

even if they relate to regulated subject matters otherwise

preempted by the FCRA. For that reason, there is no surplusage

problem here.

CDIA maintains that legislative history reflects that

Congress intended to expand the preemptive scope of the FCRA by

establishing a uniform national standard related to information

contained in credit reporting with which states could not

interfere. We see no reason to presume that Congress intended, in

providing some federal protection to consumers regarding the

information contained in credit reports, to oust all opportunity

for states to provide more protections, even if those protections

-17- would not otherwise be preempted as "inconsistent" with the FCRA

as under 15 U.S.C. § 1681t(a). This is not a case in which the

federal government ousted states from regulating the field of

consumer credit reports, and then stepped in to provide limited

protections to consumers. The FCRA was first enacted to provide

federal protections for consumers, including its prohibition on the

reporting of obsolete "items of information" such as "[a]ny other

adverse item of information which antedates the report by more than

seven years," and states were at the same time free to provide

additional protections, subject only to the prohibition on

"inconsistent" state laws that now appears in Section 1681t(a). See

FCRA,

605, 622,

, 1136 (1970)

(codified as amended at 15 U.S.C. §§ 1681t, 1681c); see also Guimond

v. Trans Union Credit Info. Co.,

(9th Cir. 1995)

("The legislative history of the FCRA reveals that it was crafted

to protect consumers from the transmission of inaccurate

information about them . . . ."). And even where Congress has

chosen to preempt state law, it is not ousting states of regulatory

authority; state regulators have concurrent enforcement authority

under the FCRA, subject to some oversight by federal regulators.

See 15 U.S.C. § 1681s(c).

In any case, given that the language of the statute is

unambiguous, we find it unnecessary to dwell further on its

-18- legislative history. See Conn. Nat'l Bank,

("When

the words of a statute are unambiguous, then, th[e] first canon [of

statutory construction] is also the last: 'judicial inquiry is

complete.'" (quoting Rubin v. United States,

(1981)). What is more, if Congress intended to impose that degree

of uniformity, it could have accomplished this objective by

prohibiting all state regulation of content of consumer reports.

But "Congress did not write the statute that way." Russello v.

United States,

(1983). Instead, it inserted the

phrase "regulated under" to delimit the operative range of

preemption. We "cannot revisit that choice." Lozano v. Montoya

Álvarez,

(2014).

CDIA directs our attention to the possible negative

effects that a ruling favoring the State of Maine on this issue

might have on the national economy and the difficulties that the

consumer-credit industry might face if credit reporting agencies

have to comply with what it refers to as a "patchwork of state

laws." 4 In response, the State of Maine argues that CDIA

4Along the same line, Amici American National Financial Services Association and United States Chamber of Commerce assert that: allowing States to disturb the national consumer-reporting industry with state-specific standards runs the risk of upsetting the carefully balanced interests under the FCRA, in their view returning the industry to its limited, local focus that obtained generations ago; the cost of determining which state law or laws applied and of complying with those laws, could easily compel a consumer lender to operate solely within a single State, or to

-19- overstates those effects. With a statutory text and structure

such as we have examined, weighing of policy is up to Congress.

See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.,

(2000) ("Achieving a better policy outcome . .

. is a task for Congress, not the courts."); United States v.

Noland,

, 541 n.3 (1996) ("Noland may or may not have

a valid policy argument, but it is up to Congress, not this Court,

to revise that determination if it so chooses."); Madison Cnty.,

N.Y. v. U.S. Dep't. of Just.,

(1st Cir. 1981)

("Whatever may be thought to be sound public policy should be up

to Congress.").

D. Areas of Regulation

Having identified the domain of preemption under Section

1681t(b)(1)(E), we look into the statutory provisions that define

its scope, for those separate what Congress preempted from what it

did not preempt. In this endeavor, we zero in on Sections 1681c

(a)(1)-(5), 1681c(b), 1681c(a)(7) and 1681c(a)(8).

exit the lending industry altogether; State regulations may inhibit the assembly of comprehensive credit reports, undermining their predictive value and increasing lending risk; and individual state regulation would frustrate consumers as they move, commute, and deal with business from across state lines, all of which would reduce lending competition across the country, driving up interest rates for some consumers, and foreclosing access to credit for others.

-20- i. Sections 1681c(a)(1)-(5) and 1681c(b)

To begin, pursuant to Section 1681c(a), no consumer

reporting agency may make any consumer report "containing any of

the following items of information:"

(1)Cases under Title 11 or under the Bankruptcy Act that, from the date of entry of the order for relief or the date of adjudication, as the case may be, antedate the report by more than 10 years. (2)Civil suits, civil judgments, and records of arrest that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period. (3)Paid tax liens which, from date of payment, antedate the report by more than seven years. (4)Accounts placed for collection or charged to profit and loss which antedate the report by more than seven years. (5)Any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.5 See 15 U.S.C. § 1681c(a)(1)-(5). The list covers information to

be excluded from credit reports, in a progression that moves from

5 We note that "there is a simple scrivener's error" in Section 1681c(a)(5). Moran v. Screening Pros., LLC,

, 1183 n.6 (9th Cir. 2019). Thus, a comma should be included to separate the exclusionary clause as follows, "Any other adverse item of information, other than records of convictions of crimes [,] which antedates the report by more than seven years."

-21- bankruptcy cases (Section 1681c(a)(1)), to civil suits, judgments

and arrests (Section 1681c(a)(2)), paid tax liens (Section

1681c(a)(3)), and accounts placed for collection (Section

1681c(a)(4)).

Fairly read, all of these categories comprise adverse

items of information, and immediately precede Section 1681c(a)(5),

which adds to the category of material to be excluded from reports,

"[a]ny other adverse item of information, other than records of

conviction of crimes[,] which antedates the report by more than

seven years."

§ 1681c(a)(5). The catch-all language is broad

enough to cover medical debt and debt resulting from domestic

abuse, which consist of adverse items of information not covered

by the immediately preceding provisions. See FTC Staff Report,

supra at 57 (Section 1681c(a)(5) applies to "all adverse

information that is not covered" by Sections 1681c (a)(1)-(4)).6

6As originally legislated as part of the FCRA in 1970, Section 1681c (a)(5) was enacted as Section 1681c(a)(6). See Moran,

(describing original enactment). In 1990, the Federal Trade Commission (FTC), the agency with original interpretative authority over the FCRA, released a report providing guidance on the statute. See Fed. Trade Comm'n, Commentary on the Fair Credit Reporting Act,

(May 4, 1990) ("FTC Staff Commentary"). The Commentary states that the catch-all provision applied "to all adverse information that is not covered" by Section 1681c(a)(1)-(5).

. In 1998, Congress amended the FCRA, including Section 1681c(a)(6). As a result, the catch-all provision became Section 1681c(a)(5). See Moran,

(noting change). In 2011, as primary interpretative authority was being handed over from the FTC to the Consumer Financial Protection Bureau, the FTC issued a staff report

-22- Measuring the reach of preemption, Section 1681c(a)(5)

points to age. Subject to three exceptions found in Section

1681c(b), it prohibits consumer reporting agencies from reporting

adverse information that is more than seven years old. 7

Correspondingly, agencies may report that information, provided it

does not predate the report for more than seven years.

But

they are not required to do so. See FTC Staff Report, supra at

55 (Section 1681c(a)(5) does not require consumer reporting

agencies "to report all adverse information within the time

period[] set forth, but only prohibits them from reporting adverse

items beyond [that] time period[]").

In drafting (a)(1)-(a)(5) of Section 1681c, Congress

defined the subject matter, the kinds and uses of information, it

was regulating narrowly and with specificity: information older

than seven years relating to bankruptcies, civil suits, civil

judgments, records of arrest, paid tax liens, accounts in

collection, or that is otherwise adverse.

withdrawing the 1990 Commentary. See FTC Staff Report, supra at 8. As noted in the text, for Section 1681c(a)(5) the Staff Report maintained the position the Commentary had adopted in 1990 in connection with then Section 1681c(a)(6). Id. at 57. 7See De Armond, supra at 408 ("[T]he FCRA provision is less about the substantive character of the information and much more about its age. The provision establishes that information is sufficiently 'fresh' only for the designated period of time, without governing the content itself.").

-23- On appeal to us, CDIA has not developed any argument as

to whether and how the Amendments might trench on this more

circumscribed "subject matter" -- i.e., the "items of information"

listed in Section 1681c(a). Thus, given the arguments made to us,

we vacate the District Court judgment finding that Section

1681t(b)(1)(E) preempts the Maine Amendments in their entirety,

and remand to the District Court for further proceedings consistent

with this opinion.8

ii. Sections 1681c(a)(7) and 1681c(a)(8)

CDIA posits that the Medical Debt Reporting Act is

preempted because it regulates the same subject matter as Sections

1681c(a)(7) and 1681c(a)(8). These sections regulate the

reporting of veterans' medical debt. To CDIA's way of thinking,

because regulation of veterans' medical debt is regulation of

8CDIA has not developed on appeal any argument that Section 1681c preempts the Amendments based on a theory of implied preemption (of either the field, obstacle, or impossibility variety). See Murphy,

(describing different theories of implied preemption). Any such argument is therefore waived. See United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). We focus, as did the District Court, on whether Section 1681t(b) expressly preempts the Amendments. See Consumer Data Indus. Ass'n, 495 F. Supp. 3d at 19-20 ("Plaintiff's chief argument is that the two Maine Amendments are expressly preempted . . . . the Maine Amendments intrude upon a subject matter that Congress has recently sought to expressly preempt from state regulation.").

-24- medical debt, it is preempted by the FCRA. But that these sections

carry special rules when it comes to veterans' medical debt as

regulated in the statute, does not mean that they more broadly

regulate the subject matter of medical debt reporting, given that

medical debt afflicting veterans is not the only type of medical

debt Congress could have regulated.

Consider medical debt besetting law enforcement

officers, firefighters, health-care workers, education workers,

construction workers, manufacturing workers, transportation

workers, retail-sale workers, public employees, individuals in

other labor markets, as well as that burdening independent

contractors, retirees and a myriad of persons found in other

sectors of the U.S. economy. If Congress had intended to regulate

the reporting of all those instances of medical debt it could

simply have said so, without textually limiting the field of

regulation to veterans' medical debt. And that is not what it

did.9 In consequence, we conclude that Sections 1681c(a)(7) and

In 2013, Senator Merkley and others presented an amendment 9

to Section 1681c(a) to delete from credit reports "[a]ny information related to a fully paid or settled medical debt that had been characterized as delinquent, charged off, or in collection which, from the date of payment or settlement, antedate[d] the report by more than 45 days." See Medical Debt Responsibility Act of 2013, S. 160, 113th Cong. (2013). Similarly, in 2018 Senator Merkley proposed an amendment to Section 1681c(a) to exclude from consumer reports "[a]ny information related to a medical debt if the date on which such debt was placed for collection, charged to profit or loss, or subjected to any similar action antedate[d] the

-25- 1681c(a)(8) only regulate the reporting of veterans' medical debt,

not medical debt in general.

Although it is clear to us that Sections 1681c(a)(7) and

1681c(a)(8) have no preemptive effect for non-veterans' medical

debt, the scope of their partial preemptive effect on the Maine

Medical Debt Reporting Act as it applies to veterans' medical debt

is less obvious. Because the parties have not heretofore briefed

in any detail the issue of the partial preemptive scope and effect

of Sections 1681c(a)(7) and 1681c(a)(8) on the Maine Medical

Reporting Act, we think it best to permit the parties to develop

those arguments in the District Court. We take no view of the

extent of partial preemption of the Medical Debt Reporting Act at

this time. Consequently, we vacate the District Court judgment,

reverse the holding that regulation of non-veteran medical debt

report by less than 180 days," and "[a]ny information related to a fully paid medical debt that had been characterized as delinquent, charged off, or in collection which, from the date of payment or settlement, antedate[d] the report by more than 45 days." See 164 Cong. Rec. S 1482 (March 7, 2018). As the District Court observed, neither bill made it out of committee. By way of the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018, Congress did amend the FCRA to create protections for veterans in the reporting of certain medical collection debts, "to rectify problematic reporting of medical debt included in a consumer report of a veteran due to inappropriate or delayed payment for hospital care, medical services, or extended care services provided in a non-Department of Veterans Affairs facility under the laws administered by the Secretary of Veterans Affairs," and "to clarify the process of debt collection of such medical debt." Id. § 302, 132 Stat. at 1332.

-26- reporting is preempted, and remand for further proceedings

addressing the partial preemptive effect of Sections 1681c(a)(7)

and 1681c(a)(8) on the Maine Medical Debt Reporting Act.

E. 15 U.S.C. § 1681t(b)(5)(C)

CDIA contends that the Economic Abuse Debt Reporting Act

is separately preempted by Section 1681t(b)(5)(C). This Section

preempts any state law "with respect to the conduct required by

the specific provisions of . . . [S]ection 1681c-2." In turn,

Section 1681c-2 provides that "a consumer reporting agency shall

block the reporting of any information in the file of a consumer

that the consumer identifies as information that resulted from an

alleged identity theft, not later than 4 business days after the

date of receipt by such agency of [certain supporting

documentation]." 15 U.S.C. § 1681c-2.

According to CDIA, the definition of economic abuse

under the Economic Abuse Debt Reporting Act includes conduct that

qualifies as identity theft under the FCRA and requires consumer

reporting agencies to "reinvestigate" allegations of identity

theft and "block reporting of that information." And given that

the FCRA already regulates identity theft in its Section 1681c-2

and establishes how consumer reporting agencies must respond in

such cases, CDIA argues that the Economic Abuse Debt Reporting Act

is preempted by Section 1681t(b)(5)(C).

-27- The State of Maine disputes CDIA's thesis on two grounds.

First, it posits that "economic abuse is not synonymous with

identity theft." From its perspective, "there is little, if any,

overlap between these two definitions."10 Second, it observes that

the conduct required by the Economic Abuse Debt Reporting Act is

not the same conduct required by Section 1681c-2.11 In its view,

because both "the triggers for taking action" and "the actions

that then must be taken are different," the Economic Abuse Act

does not impose requirements or prohibitions regarding conduct

10The State of Maine maintains that the "economic abuse" definition under the Economic Abuse Debt Reporting Act "is far broader because it includes all manner of conduct that would not be considered 'identity theft' under [the] FCRA" and, at the same time, "it is narrower because conduct that would be considered 'identity theft' under [the] FCRA" would qualify as economic abuse under the EAA "only if it was done for the purpose of 'causing or attempting to cause an individual to be financially dependent.'" It submits that "the run of the mill identity theft addressed by [the] FCRA is . . . committed for financial gain and not to control another person." 11On this account, the State of Maine observes that the Economic Abuse Debt Reporting Act "requires a consumer reporting agency, after being provided with specified documentation by a consumer that the debt is the result of economic abuse, to reinvestigate the debt and remove any reference to the debt it determines to be the result of economic abuse." Section 1681c-2, instead, "requires a consumer reporting agency, after being provided with specified documentation by a consumer that certain information was the result of alleged identity theft, to block that information and notify the furnisher." So, the State of Maine argues that under Section 1681c-2 the agency is not required to conduct any investigation, although it can remove the block in certain circumstances.

-28- required by Section 1681c-2 and is thus not preempted by Section

1681t(b)(5)(C).

The District Court did not evaluate this issue given its

decision that the Amendments were preempted by Section

1681t(b)(1)(E). As we are vacating the Judgment, we leave it to

the District Court to determine in the first instance whether the

Economic Abuse Debt Reporting Act is preempted by Section

1681t(b)(5)(C).

III.

In sum, we conclude that Section 1681t(b)(1)(E) narrowly

preempts state laws that impose requirements or prohibitions with

respect to the specific subject matters regulated under Section

1681c. Along this line, the Amendments are not preempted in their

entirety by Sections 1681c(a)(5) and 1681c(b). We do not address

whether the Medical Debt Reporting Act or the Economic Abuse Debt

Reporting Act is partially preempted by Section 1681t(b)(1)(E).

Sections 1681c(a)(7) and 1681c(a)(8) do not preempt the Medical

Debt Reporting Act insofar as it regulates non-veterans' medical

debt. We take no position as to whether or to what extent those

sections partially preempt the Medical Debt Reporting Act and

remand that issue to the District Court for briefing by the

parties. We likewise express no opinion on whether the Economic

Abuse Debt Reporting Act is preempted by Section 1681t(b)(5)(C)

-29- and leave it to the District Court to evaluate that issue in the

first instance. Therefore, we vacate and reverse the Judgment, and

remand for further proceedings consistent with this opinion. No

costs awarded.

-30-