Mar 132026

Fifth Circuit Panel Produces Three Opinions Wrestling with Application of First to File Bar

Kenneth G. Coffin and Jaime L.M. Jones
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On March 9, 2026, a divided panel of the Fifth Circuit revived a long-running qui tam suit against Lockheed Martin and reversed a district court’s dismissal of the relator’s complaint on first-to-file grounds. United States of America ex rel. Ferguson v. Lockheed Martin Corp., No. 24-10713 (5th Cir. 2026) (“Ferguson”). Under the False Claims Act’s first-to-file bar “no person other than the Government may intervene or bring a related action based on the facts underlying” a pending, first-filed action. 31 U.S.C. § 3730(b)(5).

The panel produced three opinions—a fittingly complex result given the unusually tortured history of this case. These conflicting opinions lay bare the difficulty hiding just below the surface of the seemingly settled case law in the first-to-file space. While the opinions all ostensibly apply the same “material elements” test, they put forward vastly different visions of how it should operate in practice. The majority and concurrence argue for a highly fact intensive inquiry that parses the “mechanism” of the alleged fraud. In contrast, the dissent focuses on the overarching claims alleged—the company, the contracts, and the time periods. As the majority notes, the Fifth Circuit’s “scant caselaw is not terribly helpful here because it does not address the heart of the question: what level of granularity should we be looking at when comparing complaints to see if they are based on the same essential facts?” This case provides one answer.

Background. Defense contractors like Lockheed must comply with a complex series of statutes and regulations, including the Truth in Negotiations Act (TINA, now known as the Truthful Cost or Pricing Data Act), 10 U.S.C. § 35, the Federal Acquisition Regulation (FAR), 48 C.F.R. § 1.000, et seq., and the Defense Federal Acquisition Regulation Supplement (DFARS), 48 C.F.R. §§ 15.404-3(b), 15.406.2, 15.406.3. In this way, the “Government tries to effectuate its goal of purchasing services and materials at ‘fair and reasonable prices.’” Ferguson at 3. Here, both complaints “allege TINA and FAR violations related to overbilling.” Ferguson at 6.

Ferguson filed three qui tams in the Northern District of Texas in 2016, which were consolidated. In 2019, the Government declined. Ferguson voluntarily dismissed her case, and refiled in the Eastern District of Texas in 2020—where Girard had filed a different qui tam against Lockheed in 2017. Ferguson moved to have her case transferred to same judge overseeing the Girard qui tam, arguing that the “two lawsuits were ‘substantially related’ and would present ‘very similar legal issues and discovery disputes.’” Id. Lockheed opposed and moved to transfer Ferguson back to the Northern District. Lockheed’s motion was granted.

Lockheed then moved to dismiss Ferguson’s qui tam on first to file grounds. Lockheed emphasized that the first to file bar prohibits bringing a “related” action and Ferguson had already admitted her case was “substantially related” to the pending Girard qui tam during her prior motion practice. The district court agreed, noting that “Defendant’s magnification of Plaintiff’s own words serve to support that both actions” allege the same type of wrongdoing.

The Fifth Circuit reverses. In the Fifth Circuit, if a “later-filed complaint alleges the same material or essential elements of fraud described in a pending qui tam,” then that complaint should be dismissed under 3730(b)(5). Ferguson at 4 (citing U.S. ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 378 (5th Cir. 2009). But what does that actually mean? Which aspects of the complaint matter for purposes of the first to file bar?

In Ferguson, the majority answered emphatically that it is the mechanism of the alleged fraud that matters. The panel opinion walked in detail through allegations from a series of cases from circuits across the country, concluding that this case was more “analogous to the cases where a second relator files a complaint that alleges a violation of the same statute but alleges a different scheme or method of perpetrating the fraud” unlike a second relator who “merely add[s] details or different locations.”  Ferguson at 15. In contrast, the majority held that the district court “inappropriately overgeneralized as it compared the two complaints’ allegations.”

The concurring opinion identified “two critical elements” in the Fifth Circuit’s first-to-file caselaw: (1) courts must compare the factual allegations in the complaints, because the bar only applies to a related action based on the “facts underlying” the first suit and (2) “a critical consideration is whether the government’s investigation of the allegations in the first complaint would reasonably lead to the discovery of the fraudulent scheme that the second relator alleged.”  Ferguson at 23. Framed in this way, the concurrence questioned whether allegations of inflated per unit prices would reasonably lead investigators to uncover allegedly inaccurate labor costs from subcontractors. The concurrence also dismissed the district court’s (and dissent’s) appeal to Ferguson’s prior motion practice, arguing that those limited arguments, in a different context, were insufficient to justify dismissal.

In dissent, Judge Jones argues that her colleagues view the “complaints through the wrong end of the telescope” by “focus[ing] on details rather than on the larger commonality between the cases.” Ferguson at 34. Judge Jones argues that “the facts consist of identical component contracts according to the allegations in both complaints; involvement of Lockheed management in both complaints; at least three years’ overlap in the identical F-35 LRIP contracts. Consequently, differences in how the contract costs were inflated are details when the gravamen of both suits concerns repeated, systemic, management-approved false certifications about subcontractor costs.” Ferguson at 32 n.4.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Kenneth G. Coffin

Dallas

kenneth.coffin@sidley.com

Jaime L.M. Jones

Chicago

jaime.jones@sidley.com

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