In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3975
K RISTINE P. P URCELL,
Plaintiff-Appellee,
v.
B ANK OF A MERICA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:09-CV-356 JTM—James T. Moody, Judge.
A RGUED S EPTEMBER 8, 2011—D ECIDED O CTOBER 3, 2011
Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
E ASTERBROOK, Chief Judge. According to a complaint
filed in state court, Bank of America told credit agencies
that Kristine Purcell is behind in payments on a loan,
even though the Bank knows that she isn’t. If Purcell’s
allegations are correct, then the Bank has violated the
Fair Credit Reporting Act, 15 U.S.C. §1681s–2(a), and
perhaps state law too. The Bank removed the suit to
2 No. 10-3975
federal court and moved for judgment in its favor—
because, although Purcell’s claim arises under §1681s–2(a),
that section does not create a private right of action. See
Perry v. First National Bank, 459 F.3d 816 (7th Cir. 2006).
Section 1681s–2(c)(1) provides that the portions of the
Act allowing awards of damages to private parties
do not apply to claims under subsection (a). That
leaves enforcement in the hands of state and federal
agencies under §1681s and §1681s–2(d). The district court
accordingly dismissed Purcell’s federal claim. 2010
U.S. Dist. L EXIS 126704 (N.D. Ind. Nov. 30, 2010).
Once the federal portion of a removed suit has been
resolved, remand to state court is appropriate. See
Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988).
But the Bank contends that Purcell’s state-law theories
are preempted by §1681t(b), which says: “No requirement
or prohibition may be imposed under the laws of any
State (1) with respect to any subject matter regulated
under . . . (F) section 1681s–2 of this title, relating to the
responsibilities of persons who furnish information to
consumer reporting agencies . . . .” (Some exceptions
follow; none applies to Purcell’s claim.) The district
court decided to adjudicate this federal defense—and
rejected it, holding that the word “laws” in §1681t(b) is
limited to state statutes, leaving claims based on state
common law free to proceed, because §1681t(a) provides
that state-law claims are not preempted, except to the
extent specified by §1681t(b). Instead of remanding the
case, the district judge then dismissed Purcell’s common-
law claims without prejudice to refiling in state court.
No. 10-3975 3
The Bank has appealed from this final decision; it
contends that the dismissal should have been with preju-
dice.
The district court’s conclusion that the word “laws” in
a federal statute refers to state statutes but not state
common law produces a sense of déjà vu. This is how
Swift v. Tyson, 41 U.S. 1 (1842), understood the word
“laws” in the Rules of Decision Act, now codified at 28
U.S.C. §1652. But Erie R.R. v. Tompkins, 304 U.S. 64 (1938),
overruled Swift and held that a reference to state “laws”
comprises all sources of legal rules, including judicial
opinions. It is hard to see why the judiciary should
again tread Swift’s path. Many modern decisions about
preemption follow Erie and hold that a federal statute
preempts state common law to the same extent as
it preempts state statutory law. PLIVA, Inc. v. Mensing,
131 S. Ct. 2567 (2011), is the most recent; it collects others.
The district court saw a difference between “law,” which
it thought refers to all sources of law, and “laws,” which
the judge thought refers only to statutes. Swift reached
the same conclusion (the Rules of Decision Act refers to
state “laws” rather than “law”); Erie held otherwise.
Under the Dictionary Act, 1 U.S.C. §1, “words importing
the plural include the singular”. Legislative-drafting
manuals used by both the House and the Senate
instruct legislators to write all statutes in the singular
in order to avoid ambiguity. See House Legislative
Counsel’s Manual on Drafting Style §351(g) (1995); Office
of the Legislative Counsel, United States Senate,
Legislative Drafting Manual §§ 104, 113 (1997). The inter-
4 No. 10-3975
pretive problems generated by §1681t(b)(1) demonstrate
the wisdom of that advice.
Neither manual suggests that “law” be used to desig-
nate all sources of law, while “laws” be used to designate
statutes. What reason could Congress have had for dis-
tinguishing between statutory and common law in such
an obscure way? For that matter, what reason would
the legislature have had for preempting state statutes
regulating information sent to credit bureaus, while
not preempting state common law regulating the same
subject? The district court did not suggest one.
Only one appellate decision has considered the
meaning of the word “laws” in §1681t(b), and it holds
that the word refers to all sources of legal rules—statutes,
regulations, judicial decisions, and administrative deci-
sions. Premium Mortgage Corp. v. Equifax, Inc., 583 F.3d
103, 106–07 (2d Cir. 2009). The second circuit dealt
with prescreening consumer reports, about which
§1681t(b)(1)(A) preempts state law, while this suit
concerns §1681t(b)(1)(F). But the word “laws” appears
in the opening sentence of paragraph (1), not in either
subparagraph (A) or subparagraph (F). The conclusion
of Premium Mortgage necessarily applies to every sub-
paragraph of §1681t(b)(1). We could not affirm the
district court here without going into conflict with
Premium Mortgage.
The district court thought it necessary to read
§1681t(b)(1) narrowly in order to avoid inconsistency
with 15 U.S.C. §1681h(e), which says: “Except as pro-
vided in sections 1681n and 1681o of this title, no con-
No. 10-3975 5
sumer may bring any action or proceeding in the nature
of defamation, invasion of privacy, or negligence with
respect to the reporting of information against any con-
sumer reporting agency, any user of information, or
any person who furnishes information to a consumer
reporting agency, based on information disclosed
pursuant to section 1681g, 1681h, or 1681m of this title,
or based on information disclosed by a user of a con-
sumer report to or for a consumer against whom the
user has taken adverse action, based in whole or in part
on the report except as to false information furnished
with malice or willful intent to injure such consumer.”
The judge understood this language to preserve claims
based on “false information furnished with malice
or willful intent to injure” the consumer, which
§1681t(b)(1)(F), if it covers all sources of law, would
preempt because they come within the ambit of
§1681s–2(a). The district court’s statute-only reading of
§1681t(b)(1)(F) makes room for at least some state-law
suits alleging wilfully or maliciously false credit reports.
Other district judges likewise have seen §1681t(b)(1)(F)
as incompatible with §1681h(e) and have given the
former a narrowing construction. The statute-only ap-
proach preferred by the district judge in this case has
found favor with several district judges. See, e.g., Manno
v. American General Financial Corp., 439 F. Supp. 2d 418,
425 (E.D. Pa. 2006); Johnson v. Citimortgage, Inc., 351
F. Supp. 2d 1368, 1376 (N.D. Ga. 2004); Carlson v.
TransUnion, LLC, 259 F. Supp. 2d 517, 521 (N.D. Tex. 2003).
Some other district judges have held that §1681h(e) gov-
erns information provided before the furnisher had
6 No. 10-3975
notice of a dispute, while §1681t(b)(1)(F) governs infor-
mation provided after notice. See, e.g., Hukic v. Aurora
Loan Services, Inc., 2007 U.S. Dist. L EXIS 64629 at *33–38
(N.D. Ill. Aug. 31, 2007); Aklagi v. Nationscredit Financial
Services Corp., 196 F. Supp. 2d 1186, 1194–96 (D. Kan. 2002).
Unlike these judges, we do not perceive any incon-
sistency between the two statutes. Section 1681h(e) pre-
empts some state claims that could arise out of reports
to credit agencies; §1681t(b)(1)(F) preempts more of
these claims. Section 1681h(e) does not create a right
to recover for wilfully false reports; it just says that a
particular paragraph does not preempt claims of that
stripe. Section 1681h(e) was enacted in 1970. Twenty-six
years later, in 1996, Congress added §1681t(b)(1)(F) to
the United States Code. The same legislation also
added §1681s–2. The extra federal remedy in §1681s–2
was accompanied by extra preemption in §1681t(b)(1)(F),
in order to implement the new plan under which
reporting to credit agencies would be supervised by
state and federal administrative agencies rather than
judges. Reading the earlier statute, §1681h(e), to defeat
the later-enacted system in §1681s–2 and §1681t(b)(1)(F),
would contradict fundamental norms of statutory inter-
pretation.
Our point is not that §1681t(b)(1)(F) repeals §1681h(e)
by implication. It is that the statutes are compatible:
the first-enacted statute preempts some state regula-
tion of reports to credit agencies, and the second-
enacted statute preempts more. There is no more conflict
between these laws than there would be between a 1970
No. 10-3975 7
statute setting a speed limit of 60 for all roads in national
parks and a 1996 statute setting a speed limit of 55. It is
easy to comply with both: don’t drive more than 55 miles
per hour. Just as the later statute lowers the speed limit
without repealing the first (which means that, if the
second statute should be repealed, the speed limit
would rise to 60 rather than vanishing), so §1681t(b)(1)(F)
reduces the scope of state regulation without repealing
any other law. This understanding does not vitiate the
final words of §1681h(e), because there are exceptions
to §1681t(b)(1)(F). When it drops out, §1681h(e) remains.
But, even if our understanding creates some surplusage,
courts must do what is essential if the more recent en-
actment is to operate as designed.
The district court invoked a different canon: that a
specific statute prevails over a general statute. See
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976). As the
debate between the Justices in Radzanower demonstrates,
it can be hard to determine which statute is more spe-
cific. Is it §1681h(e), because it deals with wilful false-
hoods while §1681t(b)(1)(F) does not mention scienter,
or is it §1681t(b)(1)(F), because it deals with the sort of
claim covered by §1681s–2, while §1681h(e) does not
mention that statute? There is no answer to such a ques-
tion; each statute is more specific in one respect and
more general in another. The specific-over-general
canon gets us nowhere and does not offer a good reason
to depart from the norm that courts do not read old
statutes to defeat the operation of newer ones—and using
§1681h(e) to preserve state-law claims that come within
8 No. 10-3975
the scope of §1681s–2 would defeat the 1996 decision
that administrative action rather than litigation is the
right way to deal with false reports to credit agencies.
The judgment of the district court is reversed, and the
case is remanded with instructions to enter judgment
for the Bank on all of Purcell’s claims, state and
federal alike.
10-3-11