Dolin v. Triad National Security, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RONALD M. DOLIN,
Plaintiff,
v.
Case 1:26-cv-01574-MIS-GBW
TRIAD NATIONAL SECURITY, LLC,
and TECHSOURCE, INC.,
Defendants.
ORDER GRANTING IN PART DEFENDANT TRIAD NATIONAL SECURITY, LLC’s
MOTION TO DISMISS AND ENTERING AN ORDER TO SHOW CAUSE
THIS MATTER is before the Court on Defendant Triad National Security, LLC’s
(“Triad” or “Defendant”) Motion to Dismiss for Failure to State a Claim under Federal Rule of
Civil Procedure 12(b)(6) filed on July 17, 2026. ECF No. 5 (“Motion”). Plaintiff Ronald M. Dolin
(“Mr. Dolin” or “Plaintiff”) filed a Response on August 26, 2026, ECF No. 13 (“Response”), to
which Defendant filed a Reply on September 23, 2026, ECF No. 16. Upon review of the Parties’
submissions, the record, and the relevant law, the Court will GRANT IN PART and DENY IN
PART the Motion. In addition, the Court will order that Triad, the remaining defendant to the case,
SHOW CAUSE as to whether the court maintains subject matter jurisdiction over the tortious
interference with contract claim.1
I. 	Background
Plaintiff filed suit against Defendants Triad National Security, LLC, and TechSource, Inc.
(“TechSource”), in the First Judicial District Court of New Mexico, in Los Alamos County on
1 Defendant Triad is the sole defendant in this case following the Court’s dismissal without prejudice of Defendant
TechSource, Inc. ECF No. 18.
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March 6, 2026. ECF No. 1-2 at 1. Six days later, Plaintiff filed the operative First Amended
Complaint. Am. Compl., ECF No. 1-2 at 1. The First Amended Complaint contains three state-
law claims: (1) interference with Mr. Dolin’s contract with TechSource; (2) negligence; and (3)
declaratory judgment and injunction; as well as (4) a claim for damages. ECF No. 1-2 at 13–14.
Triad removed the case to federal court on May 15, 2026. ECF No. 1.
The events leading up to his termination from both Triad and TechSource, Inc. provide the
basis for Mr. Dolin’s claims.2 For around 35 years, from 1983 until 2018, Mr. Dolin was employed
by the Los Alamos National Laboratory (“LANL”), including a period of employment by Triad, a
scientific and technical consulting firm operating and managing LANL. Am. Compl. ¶¶ 1, 3.
LANL contracts with both the Department of Energy (“DOE”) and the National Nuclear Security
Administration (“NNSA”). Id. ¶ 1. After 2018, Mr. Dolin continued working for Triad, who then
transferred him to Triad’s subcontractor, TechSource, where his job duties remained essentially
the same. Id. ¶ 3. In 2021, Mr. Dolin became a contractor, rather than an employee, of TechSource,
at the behest of Triad, maintaining his security clearance in his capacity as a contractor. See Dolin
Dec., ECF No. 13 at 7. 3
After Mr. Dolin became a contractor at TechSource in 2021, a publisher approached Mr.
Dolin about writing and publishing a book about his career at LANL. Am. Compl. ¶¶ 4–5. In
pursuit of his book project, Mr. Dolin contacted Diana Hollis, a Triad employee, who was the
2 As required when ruling on a motion to dismiss, the Court here accepts as true all well-pleaded facts in the
Complaint and views these facts in the light most favorable to Plaintiff. In re Gold Res. Corp. Secs. Litig., 776 F.3d
1103, 1108 (10th Cir. 2015)
3 The Court incorporates this fact from the Declaration of Mr. Dolin attached to the Response to Triad’s Motion to
clarify the record of Mr. Dolin’s employment. The Court notes that this fact was not clearly pled, and considers this
an inference drawn in favor of Plaintiff.
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LANL Classification Officer.4 Id. ¶ 6. Ms. Hollis advised Mr. Dolin that he could move forward
with writing the book and, “after the final editing of the book was completed” should contact the
Classification Office for a full review of any classified information in the book. Id. Mr. Dolin
interpreted this instruction to mean he should release his manuscript to his publisher for final
editing before moving forward with Classification Office review. See id. ¶ 8. After completing the
final editing of the book with his publisher, Mr. Dolin contacted Ms. Hollis on October 17, 2022,
to start the review process as instructed, transmitting his edited book to the Classification Office.
Id. ¶¶ 6–8.
On November 7, 2022, Mr. Dolin met with the LANL Security Investigation team and Mr.
Dolin’s division leader, who informed him that he may “be in jeopardy” for submitting the
completed manuscript to his publisher prior to Classification Office review. Id. ¶ 8. Subsequent
review by Triad’s Classification Office flagged one word in Mr. Dolin’s manuscript for redaction,
which Mr. Dolin redacted. Id. ¶ 9. A second review flagged one number in Mr. Dolin’s manuscript
for redaction, which Mr. Dolin redacted. Id.
On December 21, 2022, the Security Investigation team at LANL found that, although Mr.
Dolin had done nothing wrong, the release of his book to his publisher “was a high security related
incident.” Id. ¶ 10. Mr. Dolin received no citation or punishment, but the LANL Classification
Office, run by Triad, was given a list of corrective actions to complete because of its handling of
Mr. Dolin’s book. Id. ¶¶ 10–11.
Then, on January 9, 2023, Triad informed Mr. Dolin “that the book was not approved for
publication,” citing no “valid” reasoning for its decision. Id. ¶ 12. In subsequent meetings and
4 Classification Officer is a job title described in DOE Order 475.2B as having a variety of roles involving
overseeing evaluation, self-assessment, and classification decision reviews in a field element. DOE Order 475.2B at
11–12.
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efforts, taking up a substantial amount of his time, Mr. Dolin sought to gain permission to publish
his book. Id. ¶ 13. Triad and LANL continued to deny him permission to publish, explaining that
Ms. Hollis had determined the book was classified, nothing could be done, and, falsely, citing
federal agency security concerns. Id. ¶¶ 13–14. Then, on April 20, 2023, Triad terminated its
contract with Mr. Dolin, also ordering TechSource to terminate its contract Mr. Dolin, and his
security clearance was revoked. Id. ¶ 15. Mr. Dolin received no explanation for his termination.
Id. ¶¶ 16–17. He alleges that he was terminated to protect Triad from facing consequences that
may follow an appeal of the classification review and decision by Mr. Dolin. Id.
II. 	Legal Standard
A. Motion to Dismiss for Failure to State a Claim
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move for dismissal if a
complaint fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To
survive a Rule 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This pleading standard
does not impose a probability requirement, but it demands “more than a sheer possibility that a
defendant has acted unlawfully.” Id. Mere “labels and conclusions” or “a formulaic recitation of
the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555. Although the court
must accept the truth of all properly alleged facts and draw all reasonable inferences in the
plaintiff’s favor, the plaintiff still “must nudge the claim across the line from conceivable or
speculative to plausible.” 	Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir.
2021).
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Courts will consider arguments from the moving party regarding preemption on a motion
to dismiss for failure to state a claim when preemption is a defense against suit and liability as a
matter of law, rather than against federal court jurisdiction. See, e.g., Testa v. Broomall Operating
Co., L.P., 622 F. Supp. 3d 4, 9–12 (E.D. Pa. 2022) (considering Defendant’s preemption argument
as a defense against liability in reviewing a Rule 12(b)(6) motion); Stewart v. Int’l Union, Sec.,
Police and Fire Pros. of Am., 271 F. Supp. 3d 276, 283 (D.D.C. 2017) (same); Farash v. Cont’l
Airlines, Inc., 574 F. Supp. 2d 356, 362–63 (S.D.N.Y. 2008) (same). Courts will also consider
arguments for dismissal related to exhaustion of remedies and the primary jurisdiction doctrine on
a motion to dismiss under Rule 12(b)(6). See, e.g., Verizon Wireless (VAW) LLC v. City of Rio
Rancho, N.M., 476 F. Supp. 2d 1325, 1339–40 (D.N.M. 2007) (considering, and ultimately
denying, a motion to dismiss resting on the primary jurisdiction doctrine); Yellow Corp., v. Int’l
Bhd. of Teamsters, No. 24-3111, 2025 WL 3089412, at *9 (10th Cir. Nov. 5, 2025) (same); but
see S.W. Org. Project v. U.S. Dept. of the Air Force, 526 F. Supp. 3d 1017, 1065–67 (D.N.M.
2021) (considering application of the primary jurisdiction doctrine on defendant’s motion to
dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction).
B. Judicial Notice of Adjudicative Facts.
Rule 201 allows courts to take judicial notice of “a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily determined from sources whose accuracy
cannot be reasonably questioned.” Fed. R. Evid. 201(b)(2). A court “must take judicial notice if a
party requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2).
A “court may take judicial notice at any stage of the proceeding,” Fed. R. Evid. 201(d), including
at the motion to dismiss stage, see Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977)
(upholding a district court’s decision to take judicial notice of “matters of public record such as
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state statutes” at the motion to dismiss stage); Levy v. Ohl, 477 F.3d 988, 991–92 (8th Cir. 2007)
(upholding a district court’s decision to take judicial notice of public court records at the motion
to dismiss stage).
III. 	Discussion
Defendant Triad makes four distinct arguments. First, Triad argues that Mr. Dolin failed
to exhaust his administrative remedies pursuant to Orders from the DOE. Mot. at 6–10. In support
of this and other arguments, Triad urges that this Court should take judicial notice of DOE Order
475.2B, among other related statutes, regulations, and orders. Mot. at 7; see also U.S. Dept. of
Energy, Order 475.2B, Identifying Classified Information (Oct. 3, 2014).5 In the alternative, Triad
argues that the Court should apply the primary jurisdiction doctrine. Mot. at 6–10. Triad goes on
to argue that Mr. Dolin’s state tort law claims are preempted by both field preemption and conflict
preemption. Mot. at 11–16. Defendants do not argue that Mr. Dolin’s Complaint otherwise fails to
state a claim.
Plaintiff argues that he has stated plausible claims that should survive the Motion. Resp. at
1–2. Plaintiff argues that exhaustion, primary jurisdiction, and preemption do not apply to these
state law claims because the state law claims relate only to Mr. Dolin’s injuries in tort, rather than
any issues related to classification of documents in DOE Order 475.2B or otherwise. Id. at 2–3.
Upon review, the Court cannot yet find that Plaintiff’s claims should be dismissed due to
failure to exhaust remedies or the primary jurisdiction doctrine. However, the Court does find that
two of Plaintiff’s three substantive claims are preempted by field preemption.
5 The Court notes that DOE Order 475.2B is also publicly available at the following link:
https://www.energy.gov/documents/identifying-classified-information [https://perma.cc/JQ6N-RVMP].
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A. The Court will take judicial notice of federal statutes, regulations, and orders to the
extent they contain adjudicative facts.
In its Motion, Triad asks the Court to take judicial notice of “federal regulations, orders,
and directives cited above.” Mot. at 6. Although vague in exactly which facts Triad asks the Court
to take judicial notice of, the Court interprets the request as follows. Triad has requested that the
Court take judicial notice of: (1) 48 C.F.R. 17.6, (2) 48 C.F.R. § 952.204-2 (2024), (3) 42 U.S.C.
§ 2162 (“the Atomic Energy Act”), (4) Executive Order 13526 (Dec. 29, 2009), (5) U.S. Dept. of
Energy Order 241.1B, Scientific and Technical Information Management (Dec. 13, 2010), (6) U.S.
Dept. of Energy Order 241.1C, Scientific and Technical Information Management (Oct. 8, 2024),
(7) U.S. Dept. of Energy Order 241.1D, 6 Scientific and Technical Information Management (Aug.
5, 2026), and (8) DOE Order 475.2B.
The Court will take judicial notice of each listed statute, regulation and order to the extent
they include adjudicative facts, because Triad has satisfied the Rule 201 requirements. Rule 201
requires the Court to take judicial notice if: (1) the fact “can be accurately and readily determined
from sources whose accuracy cannot be reasonably questioned[,]” making it “not subject to
reasonable dispute[;]” (2) a party requests it; and (3) the party provides the court with the
information regarding the adjudicative facts it has requested the court to notice. Fed. R. Evid.
201(b)–(c). Here, Triad has asked the Court to notice only statutes, regulations, and orders readily
available in the public domain. Anyone with access to the United States statutes, regulations, and
DOE website cannot reasonably dispute their authenticity. See Toth v. Grand Trunk R.R., 306 F.3d
335, 349 (6th Cir. 2002) (“Administrative regulations fall within the category of facts ‘capable of
6 Defendant has specifically requested that the Court notice DOE Orders 241.B and 214C. Mot. at 6. However,
active DOE Order 241.1D cancelled order DOE Order 241.1C (which in turn cancelled DOE Order 241.1B) after its
approval on August 5, 2026. Therefore, the Court will notice the active DOE Order 241.1D as well to the extent it
contains adjudicative facts.
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accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.’” (quoting Fed. R. Evid. 201(b))); D.B. v. DBZ Enters. LLC, 824 F. Supp. 3d 1024,
1035 (C.D. Cal. 2025) (taking judicial notice of a federal statute at the motion to dismiss stage);
but see Potter v. Meza, CV-25-663-PHX-DWL, 2026 WL 35276 at *6 (D. Ariz. Jan. 6, 2026)
(declining to take judicial notice of a state statute at the motion to dismiss stage even though “[t]he
Court could take judicial notice” of that statute). In addition, Triad has both requested that the
Court take judicial notice of and provided the Court with a citation to each relevant statute,
regulation, and order. Mot. at 3–5.
Triad also asks the Court to “take judicial notice of the fact that Triad is a government
contractor subject to the federal regulations, orders, and directives cited above.” Mot. at 6. The
Court does not need to take judicial notice of the fact that Triad is a federal contractor, because
this is stated in the Complaint. Am. Compl. ¶ 1. However, the Court will take judicial notice of the
fact that the noticed statute, regulations, and orders apply to Triad as they would, from their text
alone, apply to any federal contractor similarly situated to Triad.
Defendant, and therefore the Court, relies primarily on the Atomic Energy Act, Executive
Order 13526, and DOE Order 475.2B in its Motion. In the relevant parts, the Atomic Energy Act
§ 2162 requires the Atomic Energy Commission (“the Commission”) to “determine the data,
within the definition of Restricted Data, which can be published without undue risk to the common
defense and security and shall thereupon cause such data to be declassified and removed from the
category of Restricted Data.” 42 U.S.C. § 2162(a). The Act further requires the Commission to
“maintain a continuous review of Restricted Data and of any Classification Guides issued for the
guidance of those in the atomic energy program.” 42 U.S.C. § 2162(b).
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Executive Order 13526 provides more specifics regarding the “uniform system for
classifying, safeguarding, and declassifying national security information[.]” 75 F.R. at 707.
Section 1.4 states that “[i]nformation shall not be considered for classification unless its
unauthorized disclosure could reasonably be expected to cause identifiable or describable damage
to the national security . . . and it pertains to . . . (f) United States Government programs for
safeguarding nuclear materials or facilities.” Id. at 709. The Executive Order goes on to authorize
the Secretary of Energy to determine “when information concerning foreign nuclear programs that
was removed from the Restricted Data category in order to carry out provisions of the National
Security Act of 1947, as amended, may be declassified.” Id. at 716.
Finally, DOE Order 475.2B enacts Executive Order 13526 by “establish[ing] the program
to identify information classified under the Atomic Energy Act.” DOE Order 475.2B at 1. The
DOE Order limits its own application to DOE contractors operating under contracts containing a
Contractor Requirements Document (“CRD”). Id. The DOE Order applies to contractors as
follows: “Except for the equivalency in paragraph 3.c.(3), the CRD (Attachment 1) sets forth
requirements of this Order that will apply to contracts that include the CRD. The CRD must be
included in contracts that may generate classified information, documents, or material.” Id.
Attachment 4 to the DOE Order specifies the “Classification/Declassification Review
Requirements,” including those contracts that include a CRD. Id. at 39–51. Generally, Attachment
4 provides a guide for conducting Classification and Declassification Reviews. Id. Section 4 of
Attachment 4 contains a process by which employees may challenge classification decisions. Id.
at 50–51. Specifically, the DOE Order “encourage[s employees] to challenge the classification of
information, documents, or material that he or she believes is improperly classified.” Id. at 50.
First, the Director of the Office of Classification and the Classification Officer will provide a
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review and a response to the challenge. Id.. From there, the employee may appeal to the Director
of the Office of Classification, then the Associate Under Secretary for Environment, Health,
Safety, and Security, and finally to the Interagency Security Classification Appeals Panel. Id.
B. Exhaustion of Remedies Does Not Yet Apply to Plaintiff’s Claims
In general, federal courts require plaintiffs to pursue relief through all levels available to
them from an administrative agency before seeking relief from a court. Reiter v. Cooper, 507 U.S.
258, 269 (1993). “[U]ntil that recourse is exhausted, suit is premature and must be dismissed.” Id.
Here, however, Triad fails to clearly explain and demonstrate how the terms of DOE Order 475.2B,
the sole authority cited for its claim that there is an administrative process to exhaust, apply to
Plaintiff’s manuscript such that text of Order itself establishes that Plaintiff has failed to exhaust
administrative remedies.
Two main issues cause this argument to fail at the motion to dismiss stage. First, Defendant
cannot establish at this stage that its contracts with the DOE and its subagencies, or its own contract
with subcontractor TechSource, incorporate a CRD as required by DOE Order 475.2B. See DOE
Order 475.2B at 1. Even with the judicially noticed fact that DOE Order 475.2B applies to
government contractors like Triad, Triad cannot yet introduce its own contracts to demonstrate
that they contain a CRD, as required by DOE Order 475.2B, at the motion to dismiss stage.
Accordingly, the Court cannot yet conclude the administrative appeals process in DOE Order
475.2B applies to Triad and its employees at LANL.
Second, it is unclear from the text of DOE Order 475.2B how it applies to a pre-publication
review process for contractors. See id. at 44–45. This is in contrast with the Order’s clear
application to both Headquarters and “field element[s] that generate[] classified information,
documents, or material.” Id. at 2–3. Moreover, DOE Order 475.2B does not mention pre-
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publication review. Accordingly, application of DOE Order 475.2B to a pre-publication review
process of a book manuscript created outside of Plaintiff’s contract work with Triad and
TechSource is also not an inference available to the Court on a motion to dismiss.
In addition, other inferences that would be necessary for the Court to dismiss any of
Plaintiff’s claims for failure to exhaust administrative remedies are unavailable here, including
Plaintiff’s continued access to an appeals process after termination and the contents and existence
of any non-disclosure agreements signed by Plaintiff related to his contracts with Triad and
TechSource. See id. at 50–51; Stillman v. C.I.A., 319 F.3d 546, 547 (D.C. Cir. 2003) (describing
how a plaintiff formerly employed at LANL “signed several nondisclosure agreements that
required him to present the manuscript to the Government for prepublication review in order to
determine whether it contained classified information”). Accordingly, more evidence and
argument would be necessary for the Court to dismiss any of Plaintiff’s claims because of failure
to exhaust administrative remedies.
C. Primary Jurisdiction Similarly Does Not Yet Apply to Plaintiff’s Claims
“Primary jurisdiction is a prudential doctrine designed to allocate authority between courts
and administrative agencies.” S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 750
(10th Cir. 2005). The doctrine “comes into play whenever enforcement of the claim requires
resolution of issues which, under a regulatory scheme, have been placed within the special
competence of an administrative body[.]” United States v. W. Pac. R.R. Co., 352 U.S. 59, 64
(1956). When primary jurisdiction applies, “the judicial process is suspended pending referral of
such issues to the administrative body for its views.” Id. The analysis, although not a “mechanical
formula,” focuses on the doctrine’s two overarching purposes: promoting (1) “regulatory
uniformity by preventing courts from interfering sporadically with a comprehensive regulatory
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scheme,” and (2) “resort to agency expertise by allowing courts to consult agencies on issues of
fact not within the conventional experience of judges.” Verizon Wireless, 476 F. Supp. 2d at 1340
(citing S. Utah Wilderness Alliance, 425 F.3d at 751). 7
Here, Triad claims that the regulatory scheme that would cause the primary jurisdiction to
attach to Mr. Dolin’s claims is the primary jurisdiction of the DOE over nuclear program data
classification decisions. Specifically, Triad frames the regulatory scheme at issue here as DOE’s
power to make determinations “of classification questions arising from LANL” matters, like those
identified in DOE Order 475.2B. Mot. at 6. Plaintiff similarly acknowledges the regulatory scheme
as one involving “classification.” Resp. at 3. However, the Court declines to apply primary
jurisdiction at the motion to dismiss stage here because, as with the exhaustion of administrative
remedies issue, there are not currently facts on the record that support the precise regulatory
framework at issue as it relates to Triad, TechSource, and pre-publication review of Mr. Dolin’s
book manuscript. Therefore, it remains unclear to the Court at this stage how or whether Triad, or
another actor, would make the type of final determination related to the classification of Mr.
Dolin’s book that could then inform the court’s ruling as the primary jurisdiction doctrine
contemplates.
7 Although the Court does not engage in this analysis here, the Tenth Circuit “enumerates a five-factor standard,”
capturing and expanding on the two overarching purposes of the doctrine, “that courts must consider when evaluating
the primary jurisdiction doctrine’s applicability to its exercise of jurisdiction over a case.” S.W. Organizing Project v.
U.S. Dept. of the Air Force, 526 F. Supp. 3d 1017, 1033 (D.N.M. 2021). These factors are: (1) whether the Court “is
being called upon to decide factual issues not within the conventional experience of judges, or are instead issues of
the sort that a court routinely considers”; (2) “whether [d]efendants could be subjected to conflicting orders of both
the Court and the administrative agency”; (3) “whether relevant agency proceedings have actually been initiated”; (4)
“whether the agency has demonstrated diligence in resolving the issue or has instead allowed the issue to languish”;
and (5) whether the “plaintiff is seeking damages or injury to property or person, as this is the type of relief courts
routinely evaluate,” or whether “plaintiff seeks injunctive relief, requiring scientific or technical expertise” in which
case deferring to agency expertise may be more appropriate. Friends of Santa Fe Cnty. v. LAC Minerals, Inc., 892 F.
Supp. 1333, 1350 (D.N.M. 1995) (citing Marshall v. El Paso Natural Gas Co., 847 F.2d 1373, 1376–77 (10th Cir.
1989)).
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D. Counts II And III Are Preempted.
Finally, Defendant Triad argues that Mr. Dolin’s claims are preempted by both field and
conflict preemption. Preemption doctrine derives from the Supremacy Clause of the U.S.
Constitution which “provides that the laws of the United States ‘shall be the supreme Law of the
Land[,] . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’”
Chamber of Com. of the U.S. v. Edmonson, 594 F.3d 742, 765 (10th Cir. 2010) (quoting U.S.
Const. art VI, cl. 2). Preemption of a state law may be implied as field preemption when either
“the scheme of federal regulation is sufficiently comprehensive to make the reasonable inference
that Congress ‘left no room’ for supplementary state regulation,” or “‘the federal interest is so
dominant that the federal system will be assumed to preclude enforcement of state laws on the
same subject.’” Hillsborough Cnty., v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 713 (1985)
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Federal law may also
impliedly preempt state law through conflict preemption, which involves a conflict between state
and federal law such that the state law is an “obstacle” to compliance with federal law or it is
“impossible” to comply with both state and federal law. Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363, 372–73 (2000).
When analyzing a potential preemption issue, the Court considers first “the purpose of
Congress” in the relevant legislation, and second “the assumption that the historic police powers
of the States were not to be superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (internal quotations and citations
omitted). Defendant specifically argues that the Atomic Energy Act, 42 U.S.C. § 2162, as well
Executive Order 13526 and the judicially noticed DOE Orders, together establish that Congress
has occupied the field of confidential national security-related document classification and
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declassification, specifically as it relates to nuclear energy. ECF No. 5 at 13–15. In addition,
Defendant argues that applying both state tort law and federal classification law to agency and
contractor classification decisions would create sufficient conflict for conflict preemption. Id. at
15–16.
First, the Court looks to the “the structure and purpose” of how 42 U.S.C. § 2162, and the
larger context of the Atomic Energy Act of 1954, “as a whole . . . [by reviewing] the way in which
Congress intended the statute and its surrounding regulatory scheme to affect business, consumers,
and the law.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996) (internal quotation and citation
omitted). Defendant points to a case from the Fourth Circuit, Cox v. Duke Energy, as an analog for
how the Court should interpret the classification provision. 876 F.3d 625 (4th Cir. 2017). Robert
Fleming had repeatedly flown his glider plane over a nuclear plant in South Carolina run by Duke
Energy Progress, Inc., arousing the suspicion of the plant’s security personnel. Id. at 627. The
security team, therefore, alerted the county sheriff’s office, the airport, the Federal Aviation
Administration, and the Shaw Air Force Base of the plane’s activity. Id. Fleming later sued Duke
Energy for various claims including state law tort claims of false imprisonment, false arrest,
negligence, and civil conspiracy, for alleged injuries stemming from his arrest, questioning, and
time in custody that followed the nuclear plant security personnel’s actions. Id. at 627–28.
The foundation of the ruling in Cox is the finding, as articulated by the Supreme Court, that
“the federal government has occupied the entire field of nuclear safety concerns, except the limited
powers expressly ceded to the states.” Pac. Gas and Elec. Co. v. State Energy Res. Conservation
& Dev. Comm’n, 461 U.S. 190, 212 (1983). Building on this notion, the Cox Court found that
Congress had preempted state tort law in suits involving nuclear safety, specifically where
“imposing liability based on such claims would have a ‘direct and substantial effect’ on decisions
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designed to ensure the facility’s safety[.]” 876 F.3d at 635–36 (quoting English v. Gen. Elec. Co.,
496 U.S. 72, 85 (1990)). In addition, the Cox Court found that imposing state tort liability on
nuclear security decisions may induce hesitation that “could thus compromise the responsibility of
reporting threats promptly before it becomes too late for the government to respond[.]” Id. at 636.
Like Cox found for physical nuclear program safety concerns, the Court finds that the
Atomic Energy Act, 42 U.S.C. § 2162, and related regulations and orders cover the field for data-
related nuclear program safety concerns. This is supported by the Congressional intervention itself
which “prohibit[ed] and punish[ed] the dissemination” of classified nuclear program data because
it would “sufficiently imperil national security to warrant that result.” N.Y. Times Co. v. United
States, 403 U.S. 713, 743 n.3 (1971) (Marshall, J., concurring). Given the weight of these interests,
the same considerations for physical safety of the nuclear program present in Cox are present here.
Namely, that imposing state tort liability on nuclear data security decisions would have a “direct
and substantial effect” on decisions made to safeguard data related to the United States’ nuclear
program. See English, 496 U.S. at 85.
The Complaint here makes it clear that Triad personnel, like Ms. Hollis, are key actors in
charge of making classification and declassification decisions at LANL, a facility where engineers
and scientists with access to classified information work on nuclear energy projects. See Am.
Compl. ¶¶ 1, 3, 5. These classification and declassification decisions lie at the core of the “risk to
the common defense and security” that Congress considered when setting up systems to protect
data related to nuclear energy projects. 42 U.S.C. § 2162(a). Thus, just allowing tort liability to
reach nuclear data classification decisions would affect the types of decisions covered by
Congress.
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Furthermore, imposing state tort liability for actions related to making data security
decisions may affect the end result of data classification and declassification decisions themselves.
In evaluating whether information submitted for pre-publication review is classified and should be
redacted, the constellation of statues, regulations, and orders noticed by the Court, direct
decisionmakers. However, potential exposure to state tort liability creates an additional variable,
beyond what Congress intended, that may affect classification and declassification decisions. For
example, a government contractor like Triad operating under federal classification regulations and
orders may have an incentive to be overly deferential to employees seeking pre-publication review
to avoid potential liability damages.8 And such adverse incentives may undermine the integrity of
nuclear program data security.
Moreover, the regulatory scheme related to classification and declassification of nuclear
information, as implemented by Executive and DOE Orders, further demonstrates that Congress
intended to preempt state police powers on issues of nuclear data safety. Executive Order 13526
specifically states that information pertaining to “United States Government programs for
safeguarding nuclear materials or facilities” shall be considered for classification if “its
unauthorized disclosure could reasonably be expected to cause identifiable or describable damage
to the national security.” Executive Order 13526 § 1.4(f), 75 Fed. Reg. 707, 709 (Dec. 29, 2009).
And the DOE Orders provide the information and processes used to consider nuclear program data
for classification. See generally, DOE Order 241.1D (“This Order establishes requirements and
responsibilities for identifying, reviewing, collecting, controlling, preserving, and disseminating”
8 However, the Court notes a key difference between Triad’s classification decisions and the types of safety
decisions made by operators of nuclear facilities in Cox. In Cox, the operator was not in control of how outside
authorities may act after it reported a potential safety issue. 876 F.3d at 636. Here, however, there is no analogous
third party that may act tortiously with a causal link to a classification decision made by a contractor like Triad. Still,
the Court considers the impacts of potential tort liability on decisionmakers to favor preemption.
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scientific and technical information;” DOE Order 475.2B (This Order “establish[es] the program
to identify information classified under the Atomic Energy Act . . . or Executive Order (E.O.)
13526 . . . so that it can be protected against unauthorized dissemination.”). Together, these Orders
protect nuclear program data as a national security issue, and one which “courts have recognized
. . . the [federal] government has ‘a compelling interest in protecting[.]’” Edgar v. Haines, 2 F.4th
298, 304 (4th Cir. 2021) (quoting Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)).
Accordingly, the Court finds that Congress had sufficiently covered the field of nuclear
program data security and now turns to whether Plaintiff’s claims are preempted.9
1. 	Count II is preempted.
Count II seeks to impose liability because “Defendant Triad was negligent in its advice to
Mr. Dolin regarding publication, the use of its flawed procedure, the self-serving determination
that the book was not publishable, and in revoking Plaintiff’s security clearance.” Am. Compl.
¶ 23. In other words, Mr. Dolin seeks to impose state tort liability on Triad for how it applied the
nuclear data safety protocols laid out in the Executive and DOE Orders, as envisioned by Congress
in the Atomic Energy Act, to his pre-publication review process. However, as explained above,
the Atomic Energy Act and the regulatory scheme flowing from it preempt state tort claims related
to nuclear program data security decisions. Accordingly, Count II is preempted by the Atomic
Energy Act, and therefore, is dismissed with prejudice. See, Sturgeon v. ABF Freight Sys., Inc., 2-
cv-1317-JB-WDS, 2004 WL 7338196 at *2 (D.N.M. Jan. 7, 2004) (“[W]hen federal courts have
found state law claims to be completely preempted by federal law, the courts dismiss the state
9 Although Congress has covered the field and preempted state laws from acting on nuclear program data security
decisions, federal courts will consider pre-publication review issues that properly raise constitutional questions. See,
e.g., Stillman, 319 F.3d at 548 (considering the validity of the pre-publication review decision barring a book for
publication written by a former employee of LANL).
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claims with prejudice.” (citing Botsford v. Blue Cross & Blue Shield of Mont., 314 F.3d 390, 399
(9th Cir. 2002); Kaufman v. Allied Pilots Assoc., 274 F.3d 197, 204 (5th Cir. 2001); Variety
Children’s Hosp., Inc. v. Century Med. Health Plan, Inc., 57 F.3d 1040, 1041 (11th Cir. 1995))).
2. 	Count III is preempted.
Although not cited in the Complaint, the Court construes Count III as a claim under the
New Mexico Declaratory Judgment Act. See N.M. Stat. Ann. 44-6-1 et seq.; Resp. at 1. In seeking
a declaratory judgment from the Court of “the rights and legal status of Plaintiff and Triad and the
right to publish [Plaintiff’s] book,” Plaintiff again seeks to utilize state law mechanisms to receive
a remedy in a field Congress has covered—nuclear program data security. Am. Compl. ¶ 27. Even
with the favorable standard on a motion to dismiss, the facts show that Triad’s power to review
Plaintiff’s book in the pre-publication review process derives entirely from the federal statutes,
regulations, and orders related to nuclear program data security. Without these federal mandates
and systems, the review process that led to Triad’s decision, regardless of the merits, would not
exist. Therefore, this decision itself, and any remedy altering that decision, falls under the field of
preemption established above. Accordingly, Count III is also preempted by the Atomic Energy
Act and dismissed with prejudice.
3. 	Counts I and IV are not preempted.
Count I is not preempted by field preemption because this claim asks the Court to consider
an issue outside of the preempted field of nuclear program data security. Furthermore, the Court
finds no conflicts between the state and federal laws at issue. In Count I, Plaintiff claims that Triad
tortiously interfered in his contract with TechSource. Am. Compl. ¶¶ 18–21. Triad attempts to cast
this claim in a similar light as Counts II and III, arguing that all of Mr. Dolin’s “claims cannot be
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resolved independently of the underlying federal classification issues.” Reply at 1. This, however,
is not the case with Count I.
In New Mexico, a plaintiff’s prima facie case for tortious inference with a contract must
allege facts that (1) a defendant had knowledge of the relevant contract, (2) “performance of the
contract was refused,” (3) “[d]efendants played an active and substantial part in causing” plaintiff
to lose the benefits of the contract, (4) “damages flowed from the breach of contract,” and (5)
“[d]efendants induced the breach without justification or privilege.” Guest v. Berardinelli, 195
P.3d 353, 363 (N.M. Ct. App. 2008) (citing Ettenson v. Burke, 17 P.3d 440 (N.M. 2001)). Triad
does not argue that Plaintiff has not properly pled each element of the prima facie case. Moreover,
Plaintiff here has plausibly pled each element of the tort without seeking to impose liability on
Triad in relation to the pre-publication review process, and related preemption issue, described
above.
In the relevant part, the Complaint alleges that Triad instructed TechSource to terminate
its contract with Plaintiff, after initially requesting that TechSource contract with Plaintiff.
Crucially, Plaintiff alleges that Triad interfered without justification not because of its decision or
decisionmaking with respect to pre-publication review of Plaintiff’s book, but rather, to prevent
Plaintiff from bringing any issues with the review to light in an appeal. As alleged, therefore, this
claim does not seek to impose liability on Triad because of how or whether it followed federal law
regarding nuclear program data safety. That Triad’s defense to this claim may be related to pre-
publication review process does not affect the Court’s decision at the motion to dismiss stage. Nor
is the Court convinced that Plaintiff’s pursuit of this claim could result in inconsistency in how
Triad would apply the relevant federal law, and thus, conflict preemption also does not apply.
Accordingly, Count I survives the Motion.
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Count IV—a claim for damages related to Plaintiff’s loss of employment, stemming from
the remaining tortious interference with contract claim—also survives the Motion as it relates to
the remaining claim, Count I.
IV. 	Order to Show Cause
The remaining substantive claim in the operative complaint, Count I, is a state law tortious
inference with contract claim. Defendant removed this case to federal court under 28 U.S.C.
§ 1331, the Court’s federal question jurisdiction, because of the federal laws and regulations at the
core of the dispute. ECF No. 1 at 1–5. However, the Court has found that the remaining tortious
interference with contract claim is not preempted by the Atomic Energy Act, eliminating the
applicability of the federal issues Triad identified in its removal. Accordingly, the Court orders
Defendant to show cause why the case should not be remanded for lack of subject matter
jurisdiction.
V. 	Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED that: Defendant Triad’s Motion
to Dismiss is GRANTED IN PART and DENIED IN PART; and Counts II and III are
DISMISSED WITH PREJUDICE. In addition, Defendant shall, within 21 days of entry of this
Order, show cause as to why the Court should not remand the case due to lack of subject matter
jurisdiction over the remaining state law claim. Failure to timely show cause may result in remand
of the case to state court.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
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