IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10046

United States of America, ex rel, PAUL J. SOLOMON, 

 Plaintiff - Appellant

v.

LOCKHEED MARTIN CORPORATION; NORTHROP GRUMMAN 

SYSTEMS CORPORATION, 

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge.

Paul Solomon brought a False Claims Act action against his employer 

Northrop Grumman and against Lockheed Martin for making false claims 

against the government. On a motion for summary judgment, the district court 

held that it lacked jurisdiction over Solomon’s claims based on the Act’s public 

disclosure bar. We AFFIRM. 

FACTUAL AND PROCEDURAL BACKGROUND

Paul Solomon worked for Northrop Grumman Systems Corporation. 

Northrop was a subcontractor to Lockheed Martin Corporation on the 

United States Court of Appeals

Fifth Circuit

FILED

December 19, 2017

Lyle W. Cayce

Clerk

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development of the F-35 Joint Strike Fighter. Lockheed was awarded a Cost 

Plus Award Fee contract for the F-35, which permitted Lockheed to receive 

periodic award fees for meeting government performance benchmarks during 

the life of the project. Lockheed shared its award fees with its subcontractor 

Northrop. Under the Systems Design and Development contract (the “SDD 

contract”) for the project, the government required both Lockheed and 

Northrop to monitor continually and report costs and performance under a 

system known as the Earned Value Management System (“EVMS”). EVMS is 

a set of guidelines, metrics, and control systems that allows the government to 

maintain real-time awareness of program costs and spending. 

To evaluate EVMS metrics, the government required, through the terms 

of the SDD contract, that Lockheed submit monthly Cost Performance Reports 

(“CPRs”) that included up-to-date Estimates at Completion (“EACs”) for each 

portion of the project. EVMS guidelines required that reported EACs be the 

“most likely” estimate for the total cost of completing the project. The SDD 

contract also required Lockheed to maintain a “management reserve” budget 

for unanticipated challenges arising during the project. EVMS and SDD 

contract provisions forbid contractors from using management reserve funds 

to compensate for cost overruns or improve cost performance metrics. 

Northrop submitted reporting data to Lockheed, who in turn submitted 

monthly CPRs to the government. The SDD contract provided for the 

monitoring and measurement of EVMS compliance in at least two ways. First, 

it mandated access for government auditors from the Defense Contract 

Management Agency (“DCMA”). Second, under a joint Surveillance Plan 

established between Northrop and the DCMA, Northrop was to self-report 

EVMS compliance directly to the government through its own employee 

auditor. 

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In September 2005, Northrop assigned Solomon to serve as “EVMS 

Monitor” or EVMS “Focal Point” for the Joint Strike Fighter program. Solomon 

drafted the Surveillance Plan on behalf of Northrop, co-signed by his DCMA 

counterpart, outlining the ways in which Northrop would comply with its 

EVMS contractual obligations. According to Solomon, he had full discretion, 

as the Focal Point, “to direct the scope of [his] investigations, including any 

accounts or compliance issues that came to [his] attention.” Solomon 

submitted his surveillance reports directly to the DCMA. The DCMA 

frequently co-signed the reports. Over the course of the project, Solomon 

revealed in his surveillance reports that Lockheed and Northrop were 

authorizing retroactive application of management reserve funds to improve 

cost-performance overruns. According to Solomon, this constituted false cost 

variance reporting that led to Lockheed and Northrop being awarded fees they 

would not have otherwise received. 

In 2007, the DCMA conducted an EVMS audit of Lockheed. In its report, 

the DCMA concluded that Lockheed was not in compliance with a number of 

EVMS guidelines, including mismanagement and improper use of 

management reserve funds to keep “the cost performance index (CPI) from 

worsening.” In 2008, the Government Accountability Office (“GAO”) filed a 

similar report, noting that Lockheed was “using management reserve funds to 

alter its own and subcontractor performance levels and cost overruns.” In 

August 2007, Northrop transferred Solomon to a different project. He 

nonetheless continued to investigate the F-35 project and was given a copy of 

a Memorandum of Agreement (“MOA”) by another Northrop supervisor. The 

unsigned MOA between Northrop and Lockheed allegedly indicates Lockheed’s 

instructions to Northrop to meet a budget of $3.721 billion despite it being a 

“significant performance challenge[.]” If Northrop was unable to meet the 

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required target, Lockheed indicated it would use management reserve funds 

to increase Northrop’s budget. 

Solomon retired in 2008. He filed a qui tam action under the False 

Claims Act (“FCA”) in 2012, alleging that both Lockheed and Northrop 

submitted false claims to the government. Lockheed and Northrop moved for 

summary judgment, arguing that Solomon triggered the FCA’s jurisdictional 

bar. The district court held that Solomon was jurisdictionally barred because 

his complaint could have been synthesized from public disclosures, and he did 

not qualify as an original source because his reports to the government had 

been nonvoluntary. Solomon timely appealed. 

DISCUSSION

For purposes of appellate review, a challenge under the FCA’s

jurisdictional bar is the equivalent of a motion for summary judgment because 

it is necessarily intertwined with the merits. United States ex rel. Jamison v. 

McKesson Corp., 649 F.3d 322, 326 (5th Cir. 2011). “We review a summary 

judgment de novo, applying the same standard as the district court.” Id. 

Summary judgment is proper “if, viewing the evidence in the light most 

favorable to the non-moving party, there is no genuine dispute a[s] to any 

material fact and the movant is entitled to judgment as a matter of law.” Id. 

Additionally, the parties do not dispute that because Solomon’s claims concern 

events prior to 2010, this case is governed by the FCA’s language immediately 

prior to the 2010 amendments to the Act. 

Under the FCA, any person who “knowingly presents, or causes to be 

presented, a false or fraudulent claim for payment or approval” is liable to the 

United States Government for civil penalties. See 31 U.S.C. § 3729(a)(1) 

(2012). The pre-2010 version of the FCA contains the following jurisdictional 

bar, a provision now altered in the current FCA:

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(A) No court shall have jurisdiction over an action under this 

section based upon the public disclosure of allegations or 

transactions in a criminal, civil, or administrative hearing, in a 

congressional, administrative, or Government Accounting Office 

report, hearing, audit, or investigation, or from the news media, 

unless the action is brought by the Attorney General or the person 

bringing the action is an original source of the information.

(B) For purposes of this paragraph, “original source” means an 

individual who has direct and independent knowledge of the 

information on which the allegations are based and has voluntarily 

provided the information to the Government before filing an action 

under this section which is based on the information.

31 U.S.C. § 3730(e)(4)(A)–(B) (2006). 

We have previously applied the FCA’s jurisdictional bar by using a threepart test, “asking ‘1) whether there has been a “public disclosure” of allegations 

or transactions, 2) whether the qui tam action is “based upon” such publicly 

disclosed allegations, and 3) if so, whether the relator is the “original source”

of the information.’” Jamison, 649 F.3d at 327 (citation omitted). The purpose 

of the jurisdictional bar is both to promote private citizen involvement in fraud 

exposure while also “preventing parasitic suits by opportunistic late-comers 

who add nothing to the exposure of fraud.” United States ex rel. Reagan v. E. 

Tex. Med. Ctr. Reg’l Healthcare Sys., 384 F.3d 168, 174 (5th Cir. 2004) (citation 

omitted). 

I. Original vs. Amended Complaint

The district court first analyzed whether its jurisdictional analysis 

should be based on Solomon’s original complaint or instead the amended 

complaint which added a fraudulent inducement claim against Northrop and 

Lockheed. The court examined only the original complaint because of our 

holding that when a plaintiff’s original “complaint did not establish 

jurisdiction, it should have been dismissed; his amendments cannot save it.” 

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Jamison, 649 F.3d at 328. Solomon fails to raise any arguments on appeal 

concerning the district court’s decision to rely only on his original complaint. 

Accordingly, we also examine only Solomon’s original complaint in evaluating 

the FCA jurisdictional bar. 

II. Whether there was a “public disclosure”

Under our test, we compare the allegations contained in Solomon’s 

original complaint with public disclosures available at the time the complaint 

was filed. Id. at 327. If the complaint could have been synthesized from the 

disclosures, then we determine if the complainant was the original source of 

the disclosures. Id. at 331. The first issue, then, is whether there was any

public disclosure of allegations or transactions that pre-dated Solomon’s FCA 

complaint. Lockheed and Northrop cite to three potentially relevant public 

disclosures in arguing for application of the FCA jurisdictional bar. These are 

a 2007 DCMA EVMS compliance report, a March 2008 GAO report, and the 

model Joint Strike Fighter Systems Design and Development contract. The 

district court presumed that the DCMA and GAO reports were valid public 

disclosures, focusing on the second part of the test asking whether Solomon’s 

complaint was based upon the disclosures. We also start with the second part 

of the test because Solomon does not argue the two reports and the contract 

were not public disclosures. Instead, he claims his complaint was not based 

upon them. 

III. Whether Solomon’s complaint was based upon public disclosures

The second part of the FCA jurisdictional test determines whether the 

complaint is “based upon” any public disclosures. See id. Under Jamison, once 

the defendants have identified public disclosures that could plausibly be the 

source of the FCA complaint, a plaintiff “must produce evidence sufficient to 

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show that there is a genuine issue of material fact as to whether his action was 

based on those public disclosures.” Id. 

A plaintiff’s FCA complaint is based upon public disclosures if “one could 

have produced the substance of the complaint merely by synthesizing the 

public disclosures’ description of the joint venture scheme[.]” Id. at 331. The 

public disclosures must therefore provide “‘specific details about the fraudulent 

scheme and the types of actors involved in it’ sufficient to ‘set the government 

on the trail of the fraud[.]’” Id. at 329 (quoting In re Natural Gas Royalties, 

562 F.3d 1032, 1042–43 (10th Cir. 2009)). 

We recently adopted a test embraced by other circuits for determining 

whether public disclosures contain sufficient indicia of an FCA violation to bar 

a subsequently filed FCA complaint. See United States ex rel. Colquitt v. Abbott 

Labs., 858 F.3d 365, 374 (5th Cir. 2017) (citing United States ex rel. Springfield 

Terminal Ry. Co. v. Quinn, 14 F.3d 645, 654 (D.C. Cir. 1994)). Under this 

approach, “the combination of X and Y must be revealed, from which the 

readers or listeners may infer Z[.]” Id. (quoting Springfield Terminal, 14 F.3d 

at 654). Z is an inference of fraud under the FCA, while X and Y are two 

required elements for the inference: “a misrepresented state of facts and a true 

state of facts.” Springfield Terminal, 14 F.3d at 655. “The presence of one or 

the other in the public domain, but not both, cannot be expected to set 

government investigators on the trail of fraud.” Id. 

This complaint is based on public disclosures for FCA purposes if the 

facts publicly available to Solomon could have been synthesized to form the 

same inference he now alleges in his complaint. See Jamison, 649 F.3d at 331. 

The complaint alleges “Lockheed knowingly presented to the government false 

cost variance data, including data which incorporated Northrop’s false cost 

variance data. This false data was used by the government, directly or 

indirectly, in determining how much of an award fee to grant Lockheed.” 

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The first of the three potentially relevant public disclosures is the DCMA 

report. It found Lockheed had “misapplied [Management Review] budgets to 

open, internal, discrete work packages in order to prevent the cost performance 

index (CPI) from worsening.” While Lockheed referred “to this practice as a 

risk mitigation strategy, the government review team concluded that the 

actual purpose was to improve the CPIs of various [Work Breakdown 

Structure] elements.” The DCMA report stated that the approach 

“misrepresents the actual condition of cost and schedule status.” Id. The effect 

was substantial: “EACs of 17 major subcontractors have been routinely altered 

by [Lockheed], resulting in unreported overruns of ~$124M.” Similarly, the 

March 2008 GAO report stated that the “DCMA [report] found that [Lockheed] 

was using management reserve funds to alter its own and subcontractor 

performance levels and cost overruns.” 

The final disclosure, the Joint Strike Fighter contract, is discussed later.

Lockheed and Northrop argue that the DCMA and GAO findings 

comprise both the misrepresented state of facts (X) and the true state of facts 

(Y) for an inference of an FCA violation (Z). Solomon argues that his complaint 

is not based on these disclosures because neither disclosure expressly or 

implicitly alleges fraud. He argues that despite the findings of the report, 

“DCMA failed to make the connection between the misuse of Management 

Reserve and the fraud.” Solomon’s argument fails. The public disclosures need 

not expressly allege fraud. The question is whether the relator could have

synthesized an inference of fraud from the public disclosures. See Jamison, 

649 F.3d at 331. 

Solomon further argues that the public disclosures do not provide the 

necessary components of the Springfield Terminal formula because they fail to 

link “the misuse of Management Reserve to Defendants’ scheme to 

intentionally and improperly understate the EAC.” Additionally, Solomon 

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argues that neither the DCMA nor GAO reports link the receipt of award fees 

with understated EACs. This, he argues, is accomplished only through his 

provision of the MOA between Lockheed and Northrop, which demonstrates 

that not only did Lockheed and Northrop submit false EACs, but they did so 

“intentionally.” 

By arguing that only the non-public MOA provides a necessary element 

of intentionality, Solomon overstates the threshold for an FCA claim. The 

language of the FCA conveys congressional intent to prohibit qui tam actions 

“when either the allegation of fraud or the critical elements of the fraudulent 

transaction themselves were in the public domain.” Springfield Terminal, 14 

F.3d at 654 (emphasis added). Thus, the MOA is not relevant to whether 

Solomon’s complaint is based on public disclosures. When the elements of a 

fraudulent transaction are present in public disclosures, those public 

disclosures need not allege fraud in explicit language. See id. 

Public disclosures will be sufficient if they provide details “such that the 

defendant’s misconduct would have been readily identifiable” and “furnish 

evidence of the fraudulent scheme alleged.” Little v. Shell Expl. & Prod. Co., 

690 F.3d 282, 293 (5th Cir. 2012). The DCMA report states that Lockheed “was 

using management reserve funds to alter its own and subcontractor 

performance levels and cost overruns.” The report identified Lockheed’s 

purpose: “to prevent the cost performance index (CPI) from worsening.” Thus, 

the DCMA report sufficiently indicates misconduct and leads at least to an 

inference of fraud under the Springfield Terminal test. Applying Little, we 

also conclude that the DCMA and GAO reports allege facts that make a 

potentially fraudulent scheme readily identifiable: Lockheed and its 

subcontractors were violating contracting regulations by using their 

management reserve budgets to compensate for over-budget expenditures that 

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would have otherwise raised their cost performance indexes and estimates at 

completion reported to the government. 

Solomon finally argues that this information, by itself, is insufficient 

because technical violations of EVMS guidelines and contract provisions do not 

necessarily trigger FCA violations. He argues that a necessary piece of the 

puzzle is that estimates at completion were the basis for the government 

issuing award fee bonuses at various phases of the project. Without this 

awareness, misuse of management reserve budgets to inflate cost performance 

indexes does not support financial loss to the government. Solomon asserts

that only the nonpublic MOA provides that piece. To the contrary, Northrop 

argues that the model Joint Strike Fighter System Design and Development

contract, which Solomon concedes was publically available at the time he filed 

his complaint, explicitly cites cost performance index reporting as a criteria for 

the disbursement of award fees. 

Solomon argues that “[t]he simple fact that the model SDD contract was 

available on a government website does not mean that anyone with an 

understanding of Defendants’ EVMS discrepancies would ever think to search 

for the model contract.” We are not concerned however, with the overall

probability of someone inferring fraudulent activity from the public 

disclosures. The focus is on whether they could have made the inference. See 

Jamison, 649 F.3d at 331. 

Solomon has failed to “produce evidence sufficient to show that there is 

a genuine issue of material fact as to whether his action was based on those 

public disclosures.” Id. at 327. 

IV. Whether Solomon qualifies as an original source

Even though Solomon’s complaint was based upon public disclosures, his 

FCA complaint may proceed if he is the original source of the publically 

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disclosed information. Id. We use a two-part test in determining the original 

source exception: “(1) the relator must demonstrate that he or she has direct 

and independent knowledge of the information on which the allegations are 

based and (2) the relator must demonstrate that he or she has voluntarily 

provided the information to the Government before filing his or her qui tam

action.” Reagan, 384 F.3d at 177 (quotation marks and citation omitted). 

The test is stated in the conjunctive, meaning a negative answer to either 

will require dismissal of the complaint. The district court declined to reach the 

question of direct and independent knowledge because it held that Solomon did 

not voluntarily report the information. We decide the opposite question, which 

is permitted because we can resolve the appeal on any ground that was 

presented to the trial court. Breaux v. Dilsaver, 254 F.3d 533, 538 (5th Cir. 

2001). Solomon does not present any arguments concerning direct and 

independent knowledge on appeal, but he did brief the issue on summary 

judgment below. 

“Knowledge is direct if it is ‘derived from the source without interruption 

or gained by the relator’s own efforts rather than learned second-hand through 

the efforts of others.’” Jamison, 649 F.3d at 332 (quoting Reagan, 384 F.3d at 

177). Additionally, “knowledge is independent if it ‘is not derived from the 

public disclosure.’” Id. (citations omitted). 

Solomon’s FCA claim alleges both the improper use of management 

reserves and the connection of those budget alterations to obtaining award fee 

bonuses. Even if we assume Solomon had direct and independent knowledge 

about the improper use of management reserves, he lacked direct knowledge 

about the connection between management reserves and award fee bonuses. 

Because the model SDD contract was publically available and tied cost 

performance to award fees, Solomon must have direct and independent 

knowledge of the connection between cost performance and award fees as 

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described in the contract. Solomon himself concedes that based on his own 

level of knowledge, he could only “suspect” that there might be some 

relationship between cost performance and award fees. He explicitly states 

that he needed to ask another Northrop supervisor “whether there was any 

connection between cost variance numbers and Award Fees[.]” After the 

supervisor allegedly denied such a connection, Solomon only recognized the 

connection between cost performance and award fees by reading the SDD 

contract. 

Knowledge can only be independent if it is not derived from the public 

disclosure. Id. Here, the record makes clear Solomon derived his knowledge 

about the connection between cost performance and award fees from portions 

of a contract that were publically disclosed before he filed his complaint. He 

fails to demonstrate that he is the original source of the model SDD contract. 

Accordingly, we lack jurisdiction to hear Solomon’s claims under the 

FCA’s public disclosure bar. 

AFFIRMED.

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