     Case: 18-31049      Document: 00514922104         Page: 1    Date Filed: 04/18/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                    No. 18-31049                               FILED
                                  Summary Calendar                         April 18, 2019
                                                                          Lyle W. Cayce
                                                                               Clerk
MARK JAVERY; BRIAN DEJAN,

              Plaintiffs–Appellants

v.

LOCKHEED MARTIN CORPORATION,

              Defendant–Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:17-CV-5106


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*
       Mark Javery and Brian Dejan appeal the district court’s dismissal of
their retaliation claims under the Federal False Claims Act (“FCA”), 31 U.S.C.
§ 3730(h) on res judicata grounds. Appellants claim the district court applied
the wrong test in assessing whether their retaliation claims fall under the
“same claim or cause of action” as required by our res judicata doctrine. Steve
D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044, 1045 (5th
Cir. 1989). The district court applied the transactional test, asking whether


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-31049     Document: 00514922104      Page: 2   Date Filed: 04/18/2019



                                  No. 18-31049
the Appellants’ retaliation claims arose out of the “same nucleus of operative
facts” as the Appellants’ previous actions. It found that the facts underpinning
the Appellants’ FCA claims were identical to the nucleus of operative facts
supporting their previous claims for employment discrimination. See Javery v.
Lockheed Martin Corp., No. 14-2644, 2016 WL 1642926 (E.D. La. Apr. 26,
2016); DeJan v. Lockheed Martin Corp., No. 14-2731, 2016 WL 1161284 (E.D.
La. Mar. 23, 2016).
      Appellants now argue that this circuit does not use the transactional
test, urging us to instead ask “whether the primary right and duty or wrong
are the same in each action.” But Appellants base their argument on a
misreading of Nilsen v. City of Moss Point, Miss., 701 F.2d 556 (5th Cir. 1983)
(en banc). Contrary to their assertions, this circuit uses the transactional test
and has for over three decades. Nilsen actually established our formal adoption
of the transactional test. See Nilsen, 701 F.2d at 559–60 n.4 (“[T]he
transactional test . . . represents the modern view and . . . we prefer [it] to our
earlier writings.”); see also United Home Rentals, Inc. v. Texas Real Estate
Comm’n, 716 F.2d 324, 328 (5th Cir. 1983) (“This Circuit has definitively
established as the standard to be applied in determining whether the
substance of the two action is the same for res judicata purposes the
transactional test of a ‘claim’ enunciated in the Second Restatement of
Judgments.”) (citing Nilsen, 701 F.2d at 559–60 n.4); Houston Prof’l Towing
Ass’n v. City of Houston, 812 F.3d 443, 447 (5th Cir. 2016) (“We apply a
transactional test to determine ‘whether two suits involve the same claim or
cause of action.’ The transactional test focuses on whether the two cases ‘are
based on the same nucleus of operative facts.’”) (cleaned up).
      The district court did not err in either its decision to apply the
transactional test or in its application of that test. The facts that support the
Appellants’ FSA claims here all arose prior to the filing of their previous
                                        2
    Case: 18-31049    Document: 00514922104     Page: 3   Date Filed: 04/18/2019



                                 No. 18-31049
actions, and the nucleus of operative facts supporting their complaint here and
the prior complaints is identical.
      Therefore, we AFFIRM the district court’s grant of summary judgment.




                                      3
