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, Me. Rev. Stat. Ann. tit. 10, §§ 1306 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"), 15 U.S.C. §§ 1681 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, 495 F.
Supp. 3d 10, 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, 520 F.3d 70, 73 (1st Cir. 2008)
(quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (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, 578 U.S. 330, 334-35 (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, 1977 Me. Laws 945-54 (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, Pub. L. No. 115-174, 132 Stat. 1296, 1332- 35 (2018) (amending FCRA to address certain aspects of veterans' medical debt reporting).
-4- Me. Rev. Stat. Ann. tit. 10, §§ 1311 et seq.); Equifax Servs.,
Inc. v. Cohen, 420 A.2d 189, 193-194 (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, 2013 Me. Laws 255-62 (codified at Me. Rev. Stat. Ann.
tit. 10, §§ 1306 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," 2019 Me. Laws 266 (codified
at Me. Rev. Stat. Ann. tit. 10, § 1310-H(4)) ("Medical Debt
Reporting Act"), and "An Act to Provide Relief to Survivors of
Economic Abuse," 2019 Me. Laws 1062-64 (codified at Me. Rev. Stat.
Ann. tit. 10, § 1310-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
Me. Rev. Stat. Ann. tit. 10, § 1310-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, 764
F.3d 82, 90 (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., 944 F.3d 9, 21 (1st Cir. 2019).
In general, there are "three different types" of preemption –
"express," "conflict," and "field." Murphy v. Nat'l Collegiate
Athletic Ass'n, 138 S. Ct. 1461, 1480 (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., 775 F.3d 448, 452 (1st Cir. 2014). Conflict preemption
takes place when state law imposes a duty that is "inconsistent –
i.e., in conflict – with federal law." Murphy, 138 S. Ct. at
1480. Field preemption comes about when federal law occupies a
field of regulation "so comprehensively that it has left no room
for supplementary state legislation." Id.
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., 505 U.S. 504, 516 (1992). "To
illuminate this intent, we start with the text and context of the
provision itself." Tobin, 775 F.3d at 452.
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, 533 U.S. 167, 174 (2001) (quoting Market Co. v.
Hoffman, 101 U.S. 112, 115 (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, 137 S. Ct.
1652, 1659 (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, 569 U.S. 251
-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." Id. at 261. 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." Id. The Court concluded
that the phrase "with respect to" narrows the scope of preempted
subject matter to its referent or referents. See id.
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., 802 F.3d 437, 445-446 (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, 2013 WL 3227458, 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, 537
U.S. 51, 62-63 (2002) (quoting CSX Transp., Inc. v. Easterwood,
507 U.S. 658, 664 (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. 569 U.S. at 261. 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, 802
F.3d at 446 (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., 504 U.S. 374, 378-79 (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, 137 S. Ct. at 1659 (internal
quotation marks omitted) (quoting Lozano v. Montoya Álvarez, 572
U.S. 1, 16 (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, 503 U.S. 249, 254 (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, 137 S. Ct. at 1659.
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, Pub. L. 91-508 §§ 605, 622, 84 Stat. 1130, 1136 (1970)
(codified as amended at 15 U.S.C. §§ 1681t, 1681c); see also Guimond
v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (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, 503 U.S. at 254 ("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, 449 U.S. 424, 430
(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, 464 U.S. 16, 23 (1983). Instead, it inserted the
phrase "regulated under" to delimit the operative range of
preemption. We "cannot revisit that choice." Lozano v. Montoya
Álvarez, 572 U.S. 1, 16 (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.,
530 U.S. 1, 13-14 (2000) ("Achieving a better policy outcome . .
. is a task for Congress, not the courts."); United States v.
Noland, 517 U.S. 535, 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., 641 F.2d 1036, 1041 (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, 943 F.3d 1175, 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." Id.
-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." Id. § 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, 943 F. 3d at 1182 (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, 55 Fed. Reg. 18,804 (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). Id. at 18,818. 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, 943 F.3d at 1183 (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. Id. 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, 138 S. Ct. at 1480 (describing different theories of implied preemption). Any such argument is therefore waived. See United States v. Zannino, 895 F.2d 1, 17 (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
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
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-