By Sara Mieczkowski and Eddie Suarez / http://suarezlawfirm.com
A federal contractor’s go-to defense tool just got harder to use. On March 9, 2026, a divided Fifth Circuit panel revived a long-running False Claims Act suit against Lockheed Martin — and in doing so, produced three separate opinions that expose deep disagreement about how courts should apply one of the FCA’s most powerful procedural defenses.
The decision in United States ex rel. Ferguson v. Lockheed Martin Corp., No. 24-10713 (5th Cir. 2026), is essential reading for anyone who defends FCA cases involving government contractors. It shows that the first-to-file bar is harder to win than it looks — and that a defendant can lose it even when the relator has already admitted the competing cases are “substantially related.”
What the first-to-file bar is supposed to do
The FCA’s first-to-file bar is straightforward in concept. Once a qui tam relator files a complaint, “no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). The rule exists for good reasons: it prevents relators from piling on cases that add nothing new, rewards the first whistleblower to come forward, and protects defendants from duplicative litigation on the same misconduct.
In practice, courts apply a “material elements” test: if a later complaint alleges the same material or essential elements of fraud as a pending earlier one, the later case must be dismissed. That test sounds simple. Ferguson shows it is not.
How this case got to the Fifth Circuit
The procedural history alone illustrates why Ferguson became so contentious.
Relator Maria Del Carmen Gamboa Ferguson filed three qui tam complaints in the Northern District of Texas in 2016, all consolidated into one case. They alleged that Lockheed had overcharged the government on defense contracts — specifically by violating the Truth in Negotiations Act (TINA) and the Federal Acquisition Regulation, the statute and regulations designed to ensure the government pays fair and reasonable prices for what it buys. In 2019, the government declined to intervene. Ferguson voluntarily dismissed and refiled in the Eastern District of Texas in 2020.
There was already a different qui tam pending there: a case filed by another relator, Girard, against Lockheed in 2017. Both cases alleged TINA and FAR violations related to overbilling on defense contracts, with overlap on the F-35 program. Ferguson moved to have her refiled case assigned to the same judge handling the Girard suit, arguing the two were “substantially related” and would raise “very similar legal issues and discovery disputes.” That argument backfired. Lockheed seized on Ferguson’s own words, moved to dismiss her case on first-to-file grounds, and the district court agreed. The court found that both suits alleged the same type of wrongdoing against the same company.
The Fifth Circuit reversed.
Three judges, three theories
What makes Ferguson remarkable is not just the outcome — it is that the three-judge panel could not agree on why.
The majority held that the first-to-file bar turns on the mechanism of the alleged fraud, not its general subject matter. Courts must examine the fraud scheme itself at a granular level: how the money was allegedly taken, through what method, under which contract provisions. The majority concluded that Girard’s allegations — focused on inflated per-unit prices — were meaningfully different from Ferguson’s allegations about inaccurate subcontractor labor costs. Different mechanisms, same general subject (TINA overbilling), meant no first-to-file bar. The district court, the majority said, “inappropriately overgeneralized” by comparing the complaints at too high a level of abstraction.
The concurrence took a slightly different path. Rather than focusing solely on the mechanism of fraud, it identified two critical considerations: whether courts are comparing the actual factual allegations in the two complaints, and whether investigating the first complaint’s allegations would reasonably lead investigators to discover the fraud in the second. Under that framework, the concurrence concluded that probing Girard’s inflated unit-price allegations would not necessarily have uncovered Ferguson’s subcontractor labor-cost scheme. The government needed a separate whistleblower to surface the second fraud.
The dissent accused its colleagues of looking through “the wrong end of the telescope.” In its view, the majority and concurrence fixated on details while ignoring the obvious: both complaints involved the same company, the same F-35 contracts, the same time periods, and the same core allegation — that Lockheed’s management knowingly submitted false certifications about subcontractor costs. The differences in how those costs were allegedly inflated were minor variations on a single scheme, not distinct frauds. The dissent would have affirmed the dismissal.
What this means for FCA defendants
The fracture within Ferguson is not just interesting to read. It has concrete implications for how defendants should litigate the first-to-file bar going forward.
Defendants can no longer rely on broad subject-matter overlap. The district court did exactly what seemed logical: it compared the complaints at a general level (same company, same contracts, same type of violation) and dismissed. The Fifth Circuit reversed that approach. Going forward, defendants in the Fifth Circuit need to do more than show that two complaints share a general subject or statutory framework. They must engage with the specific fraud mechanisms alleged in each complaint and explain why those mechanisms are functionally the same — not just similar.
A relator’s own admissions may not be enough. One of the more striking aspects of Ferguson is that the district court relied heavily on Ferguson’s prior statement that her case was “substantially related” to Girard’s. The concurrence dismissed that argument as context-dependent — words used during a motion for case reassignment, not a binding admission about the scope of the fraud. Defense counsel should not assume that a relator’s litigation admissions will carry the day on a first-to-file motion.
The “investigative lead” test offers a promising angle for defendants. The concurrence’s framing — would investigating the first complaint reasonably lead to the second fraud? — is actually useful for defendants in cases where the government did investigate the first suit. If the government reviewed the earlier complaint, had access to the defendant’s records, and still did not uncover the second relator’s theory, that is strong evidence that the two suits address distinct frauds. Defendants should develop this factual record carefully.
Three opinions signal circuit instability. When a three-judge panel produces a majority, a concurrence, and a dissent — all purporting to apply the same test — it signals that the law is unsettled. The competing opinions offer vastly different visions of how the material elements test operates in practice, and subsequent panels will have to navigate that tension. Defendants with pending first-to-file motions should monitor subsequent Fifth Circuit decisions closely, as the contours of this standard remain in active development.
What this means for FCA relators and the government
From the relator’s perspective, Ferguson is encouraging. It confirms that a second qui tam can survive even when a first-filed case covers the same general subject matter, as long as the relator can articulate a distinct fraud mechanism or a theory that would not have emerged from the government’s investigation of the earlier case.
For the government, the decision reinforces the value of declined qui tams. Even when the government declines to intervene, a case can revive years later if a different relator brings a distinct theory. That dynamic gives defendants continued exposure to overlapping FCA suits on the same contracts — a reality that defense counsel must factor into any global resolution strategy.
The bottom line
The first-to-file bar is a powerful defense, but Ferguson shows it is not self-executing. Defendants cannot simply point to a pending qui tam, note that both cases involve the same company and contracts, and expect dismissal. Courts in the Fifth Circuit will now scrutinize the specific fraud mechanisms alleged in each complaint, not just the general subject matter.
For FCA defense practitioners, the lesson is preparation. Map the specific factual allegations in both complaints before filing a first-to-file motion. Determine whether the alleged fraud mechanisms genuinely overlap. Build the record showing how investigating the first complaint would — or would not — lead investigators to the second relator’s theory. And do not count on a relator’s prior statements to do your heavy lifting.
The bar is still there. But clearing it just got harder.
The Suarez Law Firm, P.A. represents individuals and companies in federal False Claims Act investigations and litigation. If you have questions about FCA defense strategy, contact us.
