       NOTE: This disposition is nonprecedential.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 represent-
ed by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.; DOUGLAS S. GOLDRING, Employ-
ment 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 assis-
tant, 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 adjudicat-
ed 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 discre-
tion, 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 misrepresen-
tation 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 opera-
tive 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 commit-
ted 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 evi-
dence are wrong and irrelevant. Although some of the
evidence was not produced until the hearing, the govern-
ment 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 dis-
missed.
                      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
