See also Colbert v. Potter,
471 F.3d 158 (D.C. Cir. 2006)(Allowing materialevidence to be submitted on appeal that was not submitted at the district courtunder FRAP 10(e)(2));
Shangold v. Walt Disney Co.
, 275 Fed. Appx. 72, 73 (2dCir. 2008)"Federal Rule of Appellate Procedure 10(e)(2) allows a court of appealsto consider evidence if it has been "omitted from or misstated in the record by error or accident"). As allowed by FRAP Rule 10(e)(2), Appellants are simply drawingattention to the errors in the record for the Court to consider and correct.Even assuming that the facts put forth by Appellees and their counsel areworthy of consideration concerning the Blog Post's publication, Appellants notonly refuted them but were entitled to discovery to determine the truth.Appellees and their counsel's disingenuous argument that because the falsityof their representations were not raised at the district court level, they are nowabsolved from scrutiny of these falsities at the appellate level, is simply another arrogant ruse. "The inherent power of a federal court to investigate whether a judgment was obtained by fraud, is beyond question."
Universal Oil Products Co.v. Root Refining Co.
, 328 U.S. 575, 580 (1946) citing
Hazel-Atlas Co. v. Hartford- Empire Co.
, 322 U.S. 238 (1944). This Court has the inherent power to investigateall possible instances of fraud constituted upon the lower court and this court.Fraud upon the court "involve[s] an unconscionable plan or scheme which isdesigned to improperly influence the court in its decision."
Pumphrey v. K.W.
USCA Case #12-7055 Document #1427576 Filed: 03/27/2013 Page 3 of 12