Case: 24-10713 Document: 112-1 Page: 1 Date Filed: 03/09/2026

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED March 9, 2026 No. 24-10713 Lyle W. Cayce ____________ Clerk United States of America, ex rel, Maria Del Carmen Gamboa Ferguson, Individually, Plaintiff—Appellant, versus Lockheed Martin Corporation, Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:24-CV-25 ______________________________ Before Jones, Graves, Circuit Judges, and Rodriguez, District Judge. * James E. Graves, Jr., Circuit Judge: Maria Del Carmen Gamboa Ferguson alleges that while she was employed at Lockheed Martin as the Director of Internal Audit and Senior Manager for the Subcontract Audit group, she discovered fraud across multiple military aircraft programs. Accordingly, she brought a qui tam _____________________ * United States District Judge for the Southern District of Texas, sitting by designation. Case: 24-10713 Document: 112-1 Page: 2 Date Filed: 03/09/2026 No. 24-10713 lawsuit pursuant to the False Claims Act (FCA). The district court dismissed Ferguson’s suit after concluding it lacked subject matter jurisdiction because the FCA’s first-to-file bar applied. We REVERSE and REMAND. I. Lockheed Martin is under contract with the United States Department of Defense to provide complex aircraft. To meet its obligation, Lockheed subcontracts with hundreds of corporations that provide the parts, which Lockheed then assembles. As a defense contractor, Lockheed must follow certain laws and regulations. See, e.g., Truth in Negotiations Act (TINA), 10 U.S.C. § 2306a et seq.; 1 the Federal Acquisition Regulation (FAR), 48 C.F.R. § 1.000, et seq.; Defense Federal Acquisition Regulation Supplement (DFARS), 48 C.F.R. § 201, et seq. TINA requires disclosure of “cost or pricing data,” meaning “all facts that, as of the date of price agreement . . . a prudent buyer or seller would reasonably expect to affect price negotiations significantly.” 10 U.S.C. § 2306(a)(h)(1). FAR and DFARS implement TINA requirements through regulations. FAR, inter alia, requires contractors to submit “certified cost or pricing data” and “appropriate cost or price analyses to establish the reasonableness of proposed subcontract prices.” 48 C.F.R. §§ 15.404-3(b), 15.406.2, 15.406.3. DFARS mandates, inter alia, that contractors “establish and maintain an acceptable purchasing system” and “document negotiations.” Id. § 252.244-7001(b). Through these _____________________ Case: 24-10713 Document: 112-1 Page: 3 Date Filed: 03/09/2026

No. 24-10713 regulations, the Government tries to effectuate its goal of purchasing services and materials at “fair and reasonable prices.” Id. § 15.402(a). To ensure this regime has teeth, the FCA imposes liability on “any person” who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to a United States officer or employee. 31 U.S.C. §§ 3729(a)(1)(A), 3729(b)(2)(A)(i). As part of the scheme, relators can bring civil qui tam actions in the name of the Government. Id. § 3730(b). At that point, the Government chooses whether it would like to intervene. Id. § 3730(b)(4). But “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” Id. § 3730(b)(5). This is known as the first-to-file bar. At issue here: the district court concluded that the first-to-file bar applies to Ferguson’s claim because it “contains the same essential elements” as a qui tam action previously brought by another relator, Girard. The district court accordingly dismissed Ferguson’s suit for want of subject matter jurisdiction. ^[2] II. “When addressing a dismissal for lack of subject matter jurisdiction, we review application of law de novo and disputed factual findings for clear error.” U.S. ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 376 _____________________ Case: 24-10713 Document: 112-1 Page: 4 Date Filed: 03/09/2026

No. 24-10713 (5th Cir. 2009) (citation omitted). The plaintiff bears the burden of establishing subject matter jurisdiction. Arena v. Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012). III. A. The FCA permits “suits by private parties on behalf of the United States against anyone submitting a false claim to the government.” Branch Consultants, 560 F.3d at 376 (citation modified). The FCA’s qui tam provisions encourage suits from whistleblowers with “genuinely valuable information,” while discouraging “opportunistic plaintiffs from filing parasitic lawsuits that merely feed off previous disclosures of fraud.” Id. In balancing these goals, the FCA imposes limits. One is found in 31 U.S.C. § 3730, “Section 3730(b)(5) bars a plaintiff from bringing ‘a related action based on the facts underlying [a] pending action.’” Id. at 377. “[T]he applicability of § 3730(b)(5) should be determined under an ‘essential facts’ or ‘material elements’ standard. Accordingly, as long as the later-filed complaint alleges the same material or essential elements of fraud described in a pending qui tam action, § 3730(b)(5)’s jurisdictional bar applies.” 3 Id. at 378. _____________________ Case: 24-10713 Document: 112-1 Page: 5 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 6 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 7 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 8 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 9 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 10 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 11 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 12 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 13 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 14 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 15 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 16 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 17 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 18 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 19 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 20 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 21 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 22 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 23 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 24 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 25 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 26 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 27 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 28 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 29 Date Filed: 03/09/2026 Case: 24-10713 Document: 112-1 Page: 30 Date Filed: 03/09/2026

No. 24-10713 Edith H. Jones, Circuit Judge, dissenting. Fortunately, my colleagues and I agree that the controlling published case in this circuit concerning the first-to-file bar of the False Claims Act, 31 U.S.C. § 3730(B)(5), is U.S. ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371 (5th Cir. 2009). We disagree on how the Branch test applies in this case. But at least as concerns contracts for the F-35 Joint Strike Fighter program during the period in question, approximately 2008–2018, the Ferguson complaint should be barred. Branch Consultants thoroughly reviewed other circuits’ authorities in reaching its holding that “the applicability of § 3730(b)(5) [the first-to-file bar] should be determined under an ‘essential facts’ or ‘material elements’ standard.” Id. at 378. Branch Consultants essentially equated these standards, as its footnote 9 states: “Nothing in Lujan indicates that the Ninth Circuit meant the phrase ‘same material elements of fraud’ to be construed differently than LaCorte’s phrase ‘all the essential facts’ of the fraud . . . .” Id. at 378 n.9. Thus, the rule in this circuit is that if either essential facts or material elements are common to serial False Claims Act complaints, the first-to-file bar applies. Branch Consultants went on to hold that where a particular fraud was alleged in a first False Claims Act suit and then expanded geographically in a subsequent suit, the second suit was barred. Id. at 378. As the court held, the bar applies even if the later-filed complaint “incorporates somewhat different details.” Id. at 377–78. And as Branch Consultants explained, “once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds.” Id. at 378. This court’s interpretation resembles the broad standard adopted by other circuits. See, e.g., id. at 377; United States v. Planned Parenthood of Hous., 570 F. App’x 386, 389 (5th Cir. 2014).

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No. 24-10713 Girard’s and Ferguson’s complaints both center on Lockheed’s alleged noncompliance with (1) the Truth in Negotiations Act (“TINA”) 1, 10 U.S.C. § 2306a, that applies to government contractors’ pricing disclosures and (2) the Federal Acquisition Regulations (“FAR”). Those regulations require contractors to document and certify appropriate cost or price analyses to establish the reasonableness of proposed subcontract prices. Girard’s complaint took aim at F-35 LRIP 2 contracts in which Lockheed allegedly purchased components in bulk to receive volume discounts from subcontractors but then fraudulently documented to the government that it had paid higher prices for small quantities. Girard placed this misconduct in the broader context of false TINA certifications and FAR violations, and he described it explicitly as a widespread scheme to conceal inflated subcontractor costs and fraudulently induce several of the F-35 contracts. Ferguson’s complaint also explicitly alleges a widespread scheme to conceal inflated subcontractor costs and fraudulently induce a number of F- 35 LRIP contracts. Although Ferguson’s allegations about particular contracts lack the specificity of Girard’s complaint, 3 the contracts permeated by fraud and disclosure violations necessarily overlap. The schemes’ details differ, because Ferguson focuses on inflated subcontractor labor costs, but the same statute and regulations are violated for identical contracts. Although Girard also pleads an “ongoing” scheme, Ferguson’s complaint appears to span more years. But the government, once alerted to allegedly _____________________ Case: 24-10713 Document: 112-1 Page: 32 Date Filed: 03/09/2026

No. 24-10713 systemic certification violations of TINA and FAR by Girard, would necessarily have investigated other F-35 LRIP contracts. In my view, analyzing these complaints side by side yields the same conclusion as the district court and this court in Branch Consultants. That case turned on a particular scheme that was employed in two different states. This case involves a scheme of false certifications that spanned various component parts in the same LRIP contracts for the F-35 jet aircraft; the “geography” is identical, but the details are different. Whether viewed as alleging the same “essential facts” or “material elements” as the Girard complaint, the Ferguson complaint should be barred. ^[4] The propriety of the bar is reinforced by Ferguson’s handling of her complaint over nearly six years. The filing of a False Claims Act action requires the government to investigate before the complaint is unsealed in order to determine whether it should take over the claims. Ferguson filed multiple separate complaints against Lockheed in court that instigated four _____________________ Case: 24-10713 Document: 112-1 Page: 33 Date Filed: 03/09/2026

No. 24-10713 separate federal investigations—and four separate declinations--of her claims. Three investigations were conducted by the DOJ and U.S. Attorney for the Northern District of Texas and, after Ferguson dismissed in that venue and refiled in the Eastern District of Texas, another was conducted by the Eastern District’s U.S. Attorney. A filing in the latter investigation indicated that thousands of documents were reviewed and multiple parties were questioned before the U.S. Attorney’s office declined to intervene. The government’s repeated refusals to take over her claims should mean something. Equally compelling, Ferguson repeatedly referenced the similarity of her and Girard’s complaints in court filings. After filing in the Eastern District, she sought reassignment to Judge Mazzant, who was assigned the Girard case, because her action was “a substantially related case against the same defendant.” She stated that “[b]oth actions allege that Lockheed failed to provide the Government with accurate, complete and current cost or pricing information as required by [TINA] and [FAR],” and both involved “price negotiations with [DoD] across multiple procurement contracts.” She described the “parallel nature of the two cases,” and referenced DOJ’s “parallel investigations” of Girard’s and her allegations. Further, she noted DOJ’s “common investigative focus [on] company-wide derelictions in violation of the [FCA], and particularly, [Lockheed Martin’s] numerous instances of failing to comply with the mandates of [TINA].” In fact, Ferguson pointed out that her counsel is the same as counsel in the Girard case, and she herself was a “consultant” in the Girard case. ^[5] When it suited her strategy, Ferguson did not hesitate to plead against her interest in regard _____________________ Case: 24-10713 Document: 112-1 Page: 34 Date Filed: 03/09/2026

No. 24-10713 to a first-to-file bar. Such characterizations of her and Girard’s complaints should mean something. My colleagues view these complaints through the wrong end of the telescope; they focus on details rather than on the larger commonality between the cases. When seen in the proper perspective, it is clear that Ferguson’s allegations of subcontractor miscertifications in connection with multiple F-35 LRIP contracts overlap Girard’s claim in their material elements and essential facts. A case could certainly be made for an even broader bar of Ferguson’s allegations concerning contracts for the C-130J, F- 16, and F-22 aircraft contracts, but those for the F-35 constitute about three quarters of Ferguson’s complaint. The first-to-file bar must apply.