Consumer Data Industry Assoc. v. Frey

          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-