NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT J. SARHAN,

Petitioner

v.

DEPARTMENT OF JUSTICE,

Respondent

______________________ 

2014-3197

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-13-2702-I-1.

______________________ 

Decided: April 10, 2015

______________________ 

 ROBERT J. SARHAN, Miami, FL, pro se.

CHRISTOPHER KEITH WIMBUSH, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,

FRANKLIN E. WHITE, JR.; DOUGLAS S. GOLDRING, Employment Law and Ethics Branch, Federal Bureau of Prisons, 

United States Department of Justice. 

______________________ 
2 SARHAN v. DOJ

Before LOURIE, PLAGER, and TARANTO, Circuit Judges.

PER CURIAM. 

Robert J. Sarhan (“Sarhan”) appeals from the final 

decision of the Merit Systems Protection Board (the 

“Board”) denying his petition for review and affirming the 

initial decision that found his appeal to the Board barred 

by the doctrine of res judicata. See Sarhan v. Dep’t of 

Justice, No. AT-0752-13-2702-I-1 (M.S.P.B. July 31, 2014) 

(“Final Order”). Because the Board did not err in denying 

the petition for review, we affirm. 

BACKGROUND

In 2007, the Federal Bureau of Prisons (“Bureau”) 

removed Sarhan from his position as a physician’s assistant, and Sarhan filed an appeal to the Board challenging 

that removal. The Administrative Judge (“AJ”) affirmed 

the removal in an initial decision, which was adopted by 

the full Board as its final decision after it denied Sarhan’s 

petition for review. We summarily affirmed on appeal. 

Sarhan v. Dep’t of Justice, 325 F. App’x 914 (Fed. Cir. 

2009).

Sarhan filed the instant appeal at the Board in 2013, 

alleging that the Bureau engaged in “fraud on the court” 

to obtain the prior judgment affirming his removal. After 

allowing the parties to respond to an order to show cause 

why the appeal should not be barred under the doctrine of 

res judicata, the AJ dismissed the appeal in an initial 

decision. The Board denied Sarhan’s petition for review,

finding that it had jurisdiction to decide the prior appeal 

concerning the removal action, the appeal was adjudicated on the merits, and the same cause of action and same 

parties were involved. Final Order at 4. The Board found 

that Sarhan’s new claims either related to the merits of 

the removal action or could have been raised in the earlier 

proceedings. Id. at 5. The Board further found that the 

allegedly fraudulent actions, even if true, did not substan-
SARHAN v. DOJ 3

tially change the posture of the case. Id. Without support 

for Sarhan’s conclusory statements of fraud, the Board 

declined to reverse the initial decision. Id. at 5–6. The 

AJ’s initial decision thus became the decision of the 

Board.

Sarhan appealed from the Board’s decision to this 

court. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(9).

DISCUSSION

We must affirm the decision of the Board unless we 

find it to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation 

having been followed; or (3) unsupported by substantial 

evidence.” 5 U.S.C. § 7703(c).

Res judicata prevents parties from litigating claims

that were brought or that could have been brought in a 

prior action. Carson v. Dep’t of Energy, 398 F.3d 1369, 

1375 (Fed. Cir. 2005); Peartree v. U.S. Postal Serv., 66 

M.S.P.R. 332, 337 (1995). The doctrine applies if: (1) the 

prior judgment was rendered by a forum with competent 

jurisdiction; (2) the prior judgment was a final judgment 

on the merits; and (3) the same cause of action and the 

same parties were involved in both cases. Carson, 398 

F.3d at 1375.

An exception to the doctrine of res judicata exists 

where there has been fraud, concealment, or misrepresentation by a party. Anderson v. Dep’t of Transp., 46 

M.S.P.R. 341, 349 (1990), aff’d, 949 F.2d 404 (Fed. Cir. 

1991) (unpublished table decision). But the fraud must 

“change substantially the posture of the case” in order to 

provide a basis for revisiting the appeal. Anderson, 46 

M.S.P.R. at 355. The preclusive effect of res judicata 

cannot be avoided by merely invoking arguments with a 

different legal basis. Dichoso v. Office of Pers. Mgmt., 238 
4 SARHAN v. DOJ

F. App’x 600, 601 (Fed. Cir. 2007) (citing Foster v. Hallco 

Mfg. Co., 947 F.2d 469, 478 (Fed. Cir. 1991) (same “cause 

of action” for res judicata means same “facts giving rise to 

the suit,” not merely same argument or assertion)); see 

also Morton v. U.S. Postal Serv., 174 F. App’x 563, 566

(Fed. Cir. 2006) (finding claim of fraud committed in 

connection with removal precluded under doctrine of res 

judicata because appeal of removal involved same operative facts).

Sarhan argues that his claim of fraud on the court is a 

new cause of action and therefore falls under an exception 

to res judicata. He asserts that the final decision in the 

prior appeal was tainted by fraud because the Board 

rejected his allegations that the Bureau’s witness committed perjury, thereby depriving him of the opportunity to

address the “deciding official” for his removal. Sarhan 

further asserts that the Bureau committed fraud on the 

court by concealing evidence of a witness’s illegal behavior 

and an e-mail from his wife. Moreover, due to the late 

production of that evidence, he could not have raised the 

issue before. 

The government responds that the cause of action in 

both the prior appeal and the current appeal is Sarhan’s 

removal, and Sarhan thus is attempting to relitigate the 

agency action. The government argues that Sarhan’s 

evidence of fraud concerns the credibility of the Bureau’s 

witnesses, which was previously litigated and is fully 

within the discretion of the AJ. The government also 

asserts that the claims about improperly withheld evidence are wrong and irrelevant. Although some of the 

evidence was not produced until the hearing, the government notes that Sarhan’s counsel did not request any 

additional time to review the documents or otherwise 

indicate any prejudice from their late production.

We agree with the government that the Board did not 

err in finding that the appeal was barred by res judicata. 
SARHAN v. DOJ 5

As noted by the Board, many of Sarhan’s assertions go to 

the merits of the Bureau’s removal action, and either were

raised or could have been raised in the prior proceeding. 

We also agree that Sarhan has not explained how the

alleged perjury or the allegedly concealed evidence would 

have changed the outcome of the prior proceeding. See

Anderson, 46 M.S.P.R. at 355. We find no error in the 

Board’s findings that Sarhan’s new allegations of fraud

did not substantially change the posture of the case and 

thus did not provide a basis for reversing the initial 

decision. Merely asserting a new legal claim of fraud on 

the court does not allow Sarhan to relitigate the same 

operative facts that were at issue in the removal action. 

See Dichoso, 238 F. App’x at 601. Moreover, we note that 

Sarhan admitted that, aside from his claim of fraud, his 

case is barred by res judicata. Pet’r’s Br. 14. Because we 

agree with the Board that the fraud exception does not 

apply in this situation, the appeal was properly dismissed.

CONCLUSION

We have considered Sarhan’s remaining arguments 

and find them unpersuasive. We conclude that the

Board’s decision is not arbitrary or capricious, is not

contrary to law, and is supported by substantial evidence. 

Accordingly, the decision of the Board is affirmed.

AFFIRMED