Consumer Data Industry Assoc. v. Frey ( 2022 )


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  •           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
    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-