# Petition for Writ of Certiorari — Christopher, In re (No. 08-835) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0958%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text \Y\ | 08-835 SEP 24708 October 1, 2008 Term NOFFICE OF THE CLERK In The Supreme Court of the Gnited States of America In re J. KAMAU CHRISTOPHER a/k/a JOSEPH KAMAU CHRISTOPHER BEY, Petitioner, v. NORTH CAROLINA STATE UNIVERSITY, ET AL., Respondent. ON PETITION FOR A WRIT OF MANDAMUS, WRIT OF PROHIBITION, AND A MANDANTORY INJUNTION TO THE SUPREME COURT OF NORTH CAROLINA, GENERAL COURT OF JUSTICE OF NORTH CAROLINA EMERGENCY PETITION FOR WRIT OF MANDAMUS, PETITION FOR WRIT OF PROHIBITION, AND PETITION FOR A MANDATORY INJUNTION J. CHRISTOPHER BEY C/O SHARON BEy-CHRISTOPHER, ESQ., MANAGING ATTORNEY LEGAL AID OF NORTH CAROLINA 208 Goldsboro Street, East P.O. Box 2688 Wilson, NC 27894-2688 (252) 360-1982 DECEMBER 19, 2008 Petitioner, Pro Se THE QUESTIONS PRESENTED FOR REVIEW Petitioner presents five questions for review by the Supreme Court of the United States as to whether the due process and equal protection rights of Petitioner as guaranteed by the Fourteenth Amendment of the United States, U.S. Const. Amend XIV, were violated by the following: (i) The suspension of discovery and the hearing of Respondent’s Motion for Summary Judgment before the close of evidence; Gi) The failure of the North Carolina Industrial Commission and the General Court of Justice of North Carolina to provide relief by injunction and intervention to prevent Respondent from destroying evidence’ relevant to _ these proceedings during the pendency of _ these proceedings, and the subsequent destruction of evidence relevant to these proceedings during the pendency of these proceedings; Gu) The failure of the North Carolina Industrial Commission and the General Court of Justice of North Carolina to adjudicate the objections of Petitioner as to the genuine issues of material fact and triable issues of fact as to the time, place, circumstance and nature of the personal injury of Petitioner in question presented at the hearing for Respondent’s Motion for Summary Judgment; . Fe Gv) The opinion, decision and dismissal classifying Petitioner as subject to the exclusive remedies of the North Carolina Workers’ Compensation Act without validation or certification that the personal injury of Petitioner qualified for such remedies; and (v) The opinion, decision and dismissal eliminating Petitioner’s common law claim for civil remedy against his employer, Respondent, pursuant to the exclusivity provisions of the North Carolina Workers’ Compensation Act, without adjudicating if the North Carolina Workers’ Compensation Act provided an effective administrative remedy. “iii- PARTIES TO THIS PROCEEDING Petitioner in this matter is J. Kamau Christopher a/k/a Joseph Kamau Christopher Bey, represented Pro Se. Respondent Courts in this matter are the Supreme Court of North Carolina, General Court of Justice of North Carolina; the Court of Appeals of North Carolina, General Court of Justice of North Carolina; and the North Carolina Industrial Commission, North Carolina Department of Commerce. Respondent in this matter is the State of North Carolina; The Government of the State of North Carolina; Michael F. Easley, In His Official Capacity as the Governor of the State of Ncerth Carolina, Principle Executive Officer of the Executive Branch of the Government of the State of North Carolina; and other duly authorized officers, agents and employees of the Government of the State of North Carolina acting in their official capacity in the scope of their employment as_ public servants; The University of North Carolina; Erskine B. Bowles, In His Official Capacity as President, Principle Executive Officer of the General Administration of the University of North Carolina; and other duly authorized officers, agents and employees of the University of North Carolina acting in their official capacity in the scope of their employment as public servants; North Carohna State University, constituent institution of the University of North Carolina; James L. Oblinger, In His Official Capacity as the Chancellor, Principle Executive Officer of North Carolina State University; Marye Anne Fox, In Her Official Capacity as the former Chancellor, Principle Executive Officer of North Carolina State University; Charles Leffler, in His Official Capacity as Vice Chancellor for Finance and Business, Office of Finance and Business, North Carolina State University; Kevin J. MacNaughton, in His Official Capacity as Associate Vice Chancellor for Facilities, Division of Facilities, Office of Finance and Business, North Carolina State University; Bruce L. MacDonald, in His Official Capacity as Health & Safety Manager, Environmental Health & Safety Center, North Carolina State University; Thomas H. Stafford, in His Official Capacity as Vice Chancellor for Student Affairs, Office of Student Affairs, North Carolina State University; Timothy Luckadoo, Ph.D., in His Official Capacity as Associate Vice Chancellor for University Housing, University Housing, Office of Student Affairs, North Carolina State University; Susan Grant, Director of University Housing, University Housing, North Carolina State University; Gary Thompson, in His Official Capacity as former Assistant Director of Facility Operations, University Housing, and former Associate Director of Facility Operations, University Housing, Office of Student Affairs, North Carolina State University; Timothy Blair, in His Official Capacity as former Assistant Director for Avent Ferry Complex and Wood Hall, East Campus, former Associate Director of East Campus, current Associate Director of University Apartments, University Housing, Office of Student Affairs, North Carolina State University; and other duly authorized officers, agents and employees of the North Carolina State University acting in their official capacity in the scope of their employment as public servants. Counsel for the Respondent is Dahr Joseph Tanoury, Esq., Assistant Attorney General, Tort Claims Section, Office of the Attorney General of the State of North Carolina; Elizabeth W. Riley, Esq., Deputy Legal Counsel, Office of Legal Counsel, Office of the Governor of the State of North Carohna-Latura Bernstein Luger, Esq., Vice President and General Counsel, The University of North Carolina System General Administration; David T. Drooz, Senior Associate General Counsel, Office of Legal Affairs, North Carolina State University. Note: In the original affidavit of tort claim, which initiated this action, Respondent was cited as North Carolina State University, with statutory reference to negligent acts performed by officers, agents and/or employees of Respondent in their official capacity as public servants. See N.C. Gen. Stat. § 143-291 et seq. Pursuant to the controlling law and _ statutory authority, the executive authority of Respondent is exclusively vested in the Governor of the State of North Carolina and derives from the Constitution of the State of North Carolina, and controlling law and legal authority for the public entity of North Carolina State University designates Respondent as subject to executive authority and a constituent institution of the University of North Carolina. See N.C. Const. art. IX, § 8; N.C. Gen. Stat. § 116-1 et seq. ihe TABLE OF CONTENTS Section Questions presented for review ............6..000: gig Bont Page re Table of Contents ‘ PEER Oe ens ne eee a ee FI oicncidnescssicvenvexcanioesssvens Petition for Writ of Mandamus, Petition for Writ of Prohibition, Petition for a Mandatory ETA BELOIT ROPE ETE TE POPES PATNI GIN aroisas esos scan citedewendscrescesessceves eres cod gay awiedesar ews Statutory Provisions Involved see peeewneeoeeeeauane SS EI ETIEIIS TSE SPEC LEE OPORTO ELMER OSS OTE PIE OE CO ovo wicccsnisacderensadestccistexesexs I. Summary of Federal Question ........... il. Statutory. Back@roune, ...........66s00.000s- Ilt. Factual Background .............secssecees il vl bo 13 -Vil- Table of Contents — Continued: EV PROCOGUPAE TIIBGOTY ....0acesvccesvececovesiess 18 Wy IIE Cot kcccescxdininissstscacpvcivenins 24 Justification for Grant of This Writ ............. 25 I. This relief sought involved alleged due process violations under the appellate jurisdiction of this Court, and, appeal does not provide adequate relief for ‘ said violations, thus urgent and immediate extraordinary relief is Oe wie hae taht he aS eed cease 25 II. The Petitioner has presented clear and convincing evidence that this matter involves an issue of public importance and appellate jurisdiction ~ will be impaired without GRHETHOPOITIOTY TORIGL oo. ccccssceccscccssccness 29 IL].As the Petitioner has exhausted all administrative remedies and no other remedy exists, this Court has an independent jurisdiction to review this matter on appeal and provide the extraordinary relief sought herein ...... 3] oe ENE PIE TE TE OY NEI OES ME 32 -Vill- INDEX TO APPENDICES Appendix Appendix A: Christopher v. N.C. State Univ., No. TA-19383, Or. (N.C. Industrial Commission 9 February 2007) .............0.00088 Appendix B: ChAristopher v. N.C. State Univ., No. TA-193883, Or. (N.C. Industrial Commission 10 August 2007) ..............eeee ees Appendix C: Christopher v. N.C. State Univ., No. P07-907, Or. (N.C. Ct. App. 14 November EE ike i kededcccdicciccaess eka Appendix D: Christopher v. N.C. State Uniy., No. COA07-1516, slip op. (N.C. Ct. App. 20 PENNE SPD icknccshacviscseecea ee ee Appendix E: Christopher v. N.C. State Unirv., No. 246-P08, Orders (N.C. S. Ct. 4 EOI FIO ick icdice side nccastnisussincgeaes Appendix F: Christopher v. N.C. State Univ., No. COA246-P08, Plaintiff-Appellant’s Motion for Temporary Stay, Motion to Amend the Record on Appeal, and Motion to Expedite this Appeal (N.C. Ct. App. 22 FE, Fe 4nd tasceaeeschsloccitaiee dane Page la Va 14a 16a 23a 26a -ix- Index to Appendices — Continued: Appendix G: North Carolina State University Facility Profile and Ten-Year Capital Plan, published by Eva Klein & Associates, December 1999 (excerpts EEE SS EE 46a Appendix H: Administrative Memorandum prepared by Petitioner, as employee, and submitted to Respondent, as employer, dated October 8, 2002 (redacted as appropriate) .... 52a Appendix I]: Letter from Respondent to Petitioner of January 23, 2004 .................... 55a Appendix J: Letter from Respondent to Peumumoner Of dune 23, ZOOS .........ccccccccccccees 57a Appendix K: Letter from Respondent to Petitioner of July 24, 2008 ...............ccceeeeees 67a Appendix L: Letters from Respondent to Petitioner of August 15, 2008 and August 18, Teen sc endbveiversedvesevecces 72a Appendix M: Letters from Respondent to Petitioner of September 2, 2008 and DS a ee 76a Index to Appendices — Continued: Appendix N: Letters from Respondent to Petitioner of September 24, 2008 and IS Bi: SITE ried osnd en snbcdnekeysccnessatads 78a Final Page of the Appendix N is on page 88a TABLE OF CITED AUTHORITIES Cases: Page Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000 (App. Dis. Col. 1964), reh. den., 331 F.2d 1010 (App. Dis. Col. 1964), cert. den., 377 U.S. 978, 12 L. Ed. 2d 746, 84S. Ct. 1883 CEU caccanes nebakesnibansbekecsansebibiabieeaidabncs 8 Aref v. United States, 452 F3d 202 (2nd Ce ED akc cticuedstvedetreticiauuaeuuieise ss 5 sc. 9 Association for Reduction of Violence v. Hall, 734 F.2d 63 (1st Cir. 1984) .............. 28 Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F.2d 1561 (Fed. Cir. PE ibs ca hides cssksceukaa dr ocbsek binds peso teenie 9,10 Belbacha v. Bush, 520 ¥.3d 452 (App. Dis. COO, SE: enuecachaccniaasrencvuncsnsauebeienieaate 12 Boeing Co. v. Shipman, 411 F.2d 365, 374 Ce Re i ne netesa aavetsxacvennieeenaees 25 -X1- Cases — Continued: Boulder v. Lewis, 21 F2d 910 (8th Cir. a a a a 11 Brown v. Motor Inns of Carolina, Inc., 47 N.C. App. 115, 266 S.E.2d 848 (1980), cert. denied, 301 N.C. 86 (1980) .........sececcceeee. 4 Brown v. Thompson, 430 F.2d 1214 (5th Re I aso edad le duh yee lu idesambenieedeniewess 28 Burns v. Thiokol Chemical Corp., 483 F.2d SO CR Ct, TTI ov ceisecccsesovcvecdesccadnceosse 26 Burns, Trevino v. Celanese Corp., 701 PS oki 4k ae 25, 27 Calrfornia v. United States District Court, 213 F.2d 818 (Sth Cir. 1964) .......ccccccoveees 7 Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 26 L. Ed. 2d 100, 90 S. Ct. 1648 (1970), reh. den., 399 U.S. 937, 26 L. Ed. 2d 809, 90S. Ct. 2248 (1970) ..... Y Chase v. Rohson, 435 F2d 1059 (7th Cir. RE ce iccishullecausadiiaanssinadultenccheontisecsysss 12 Cheney v. United States Dist. Court, 542 U.S. 367, 159 L. Ed. 2d 459, 124 S. Ct. NEN sisvcicdccsrainnctesuvodsbisawoegvsivesss 11, 12 Chuidian v. Philippine Nat'l Bank, 912 ’.2d 1095 (9th Cir. 1990) ........... Seemeaiawaes’ 9 Coughlin v. Lee, 946 F.2d 1152 (Sth Cir. EE sdinGaaddccudessspuvaunksed cous atessindiecewebeits 25 -X11- Cases — Continued: Crown Zellerback: Corp. v. kederal Trade Com., 156 F.2d 927 (9th Cir. 1964) .......... 8 Duniavey v. Economy Fire & Casualty Co., 887 F.2d 893 (8th Cir., 1989) ............ 6 Estate of Whitlock v. Commissioner, 547 F.2d 506 (10th Cir. 1976), cert. den., 430 U.S. 916, 51 L. Ed. 2d 594, 97S. Ct. 1329 Ex parte Abernathy, 320 U.S. 219, 88 L. BG. FS, SEB. Ch, 1S (CAGES) occcccccssvcascvccsecese ll Ex parte Farrell, 189 F.2d 540 (1st Cir. 1951), cert. den., 342 U.S. 839, 96 L. Ed. GB4. ‘TS BS. TE GALAGA) 5. ccvcvcccccecececcecvces 8 Ex parte Republic of Peru, 318 U.S. 578, 87 L. Ed. 1014, 63 S. Ct. 793 (1943) ......... g Ex parte Riddle, 255 U.S. 450, 65 L. Ed. Fas ee Be Re OED x6 sd tubbewekevsccnsevcss 9 Eyre v. McDonough Power Equip., Inc., 755 F.2d 416, 419 (5th Cir. 1985) ............ 25 First Jersey Secur., Inc. v. Bergen, 605 F.2d 690 (3rd Cir. 1979), cert. den., (1980) 444 U.S. 1074, 62 L. Ed. 2d 756, 100S. Ct. L020 (1980) ....ccccccse ele bude a iuee vugnteddswewee 9,10 Fisher v. Delehant, 250 F.2d 265 (8th Cir. IR le ara eee ee 1] -xill- Cases — Continued: Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974, 91S. Ct. 1191, 28 L. Ed. 2d 323 (1971) ..... Green v. Occidental Petroleum Corp., 541 i BE ey.) Harris v. Gibson, 322 F.2d 780 (Sth Cir. 1963), cert. den., 376 U.S. 908, 11 L. Ed. 2d GOG, 84S. Ct. G61 C1964) .......0.csceesess.. Hartley Pen Co. v United States Dist. Court, 287 F.2d 324, (9th Cir. 1961) ......... Heflin v. United States, 358 U.S. 415, 3 L. Ea. 2d 407, 79S. Ct: 451 (1959) ..........4... Henderson Tire & Rubber Co. v. Reeves, 14 F.2d 903 (8th Cir. 1926), cert. den., 273 U.S. 744, 71 L. Ed. 870, 47 S. Ct. 336 I ea a A au hien hv deinen vs Hill v. United States, 368 U.S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962) .....eeeeeeees. Tilinois Council on Long Term Care, Inc. v. Shalala, 143 F.3d 1072 (7th Cir. 1998) ..... In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 92 N.C. App. 1, 373 S.E.2d 572 (1988), rev'd on other grounds, 324 N.C. 373, 379 S.E.2d 30 (1989) .........c0ccee. In re Alantic City Railroad, 164 U.S. 638, 41 L.. Ba. 579, 17 3. Ce. 206 (1897) ........... 28 a4, 32 10 18 -X1V- Cases — Continued: In re Baldwin- United Corp. (Single Premium Deferred Annuities Ins. Litigation), 770 F.2d 328 (2nd Cir. 1985) .. In re Cheney, 334 F.3d 1096 (App. Dis. Col. 2003), vacated, remanded, 542 U.S. 367, 159 L. Ed. 2d 459, 124 S. Ct. 2576 RRR ATER Ane ap ne om ee ee In re HKastern Cherokees, 220 U.S. 88, 55 L. B4.:379, 31 &. Ct. S73 €991)) ...4..0....2:. In re Eilers Music House, 284 F. 815 (9th GED Fs ae Ree Oe ne " In re Garros, 229 F. 363 (ist Cir. 1916) ... In re Glaser, 198 U.S. 171, 49 L. Ed. 1000, Se ee ee boo os orc c cs carnnase ties vesexs In re-Grand Jury Proceedings of United States, 626 F.2d 1051 (1st Cir. 1980) ........ In re Heilbroner, 69 F.2d 643 (2nd Cir. I inara st acuican sige ers hes kddedeae seoknient In re Lisman, 89 F.2d 898 (2nd Cir. 1937) In re Massachusetts, 197 U.S. 482, 49 L. Ea, 845, 35S. Ct: 512 CASO) ..... ccc ecccsecee: In re Melvin, 546 F.2d 1 (1st Cir. 1976) .... In re Ojeda Rios, (1988, CA2) 863 F.2d 202 Ee CIEE asin id even ack savnnwedersyausthaiaes 10 10 11 -XV- Cases — Continued: In re Special March 1974 Grand Jury, etc., 541 F.2d 166 (7th Cir. 1976), cert. den., 430 U.S. 929, 51 L. Ed. 2d 773, 97S. Ct. BE EEE estcudcdeidedsanbeckeeesiadeleeenee 11 In re United States, 397 F.3d 274 (5th Cir. 2005), stay lifted, remanded, 400 F.3d 277 (5th Cir. 2005), cert. den., 161 L. Ed. 2d Pe aN nO Lees 10 International Business Machines Corp. v. United States, 480 F.2d 293 (2nd Cir. 1973), cert. den., 416 U.S. 979, 40 L. Ed. 2d 776, 94S. Ct. 2413 (1974), cert. den., 416 U.S. 980, 40 L. Ed. 2d 777, 94S. Ct. PELE es | Re Se eon NaN er 11 ITT Community Development Corp. v. Barton, 569 F.2d 1351 (5th Cir. 1978) ...... 11 Jackson v. Choate, 404 F2d 910 (5th Cir. DO so sicasincriddneviviaisteobeseeaaeae 11 John Gund Brewing Co. v. United States, 204 F. 17 (8th Cir. 1913), mod., 206 F. 386 Ci TAP. BEE vikisidieeccmnarin eee 11 Johnson and Smith v. First Union Corporation, 128 N.C. App. 450, 496 S.E.2d 1 (1998), cert. denied, 351 N.C. 648: 543 S.5.2E BIO CEO) on ccccevecssecesviess 4 Keaton v. Kennamer, 42 F.2d 814 (10th CE. TOIIE occa disenckssauneestindunaesme eee 8 -XV1- Cases — Continued: Kerr v. United States Dist. Ct. for Northern Dist., 511 F.2d 192 (9th Cir. 1975), affirmed, 426 U.S. 394, 96S. Ct. 2119, 48 L. Ed. 2d 725 (1976) ...........ceeeuee 28 Lucas v. United States, 36 F.2d 1015 (App. Dis. Col. 1929) ........ccccccscscccscccvcsess 11,12 Marshall v. Westinghouse Electric Corp., 576 F.2d 588 (5th Cir. 1978) ...............008- 27 McClellan v. Cariand, 217 U.S. 268, 54 L. ma. 762, 30 8. Ct. 601 (1910) ................... 8 Merrimack River Sav. Bank v. Clay Center, 219 U.S. 527; 31 S. Ct. 295; 55 L. chi icdessuvevesseseverescsss 29 Michigan Ass'n of Homes & Servs. for the Aging v. Shalala, 127 F.3d 496 (6th Cir. es is ssnePtvdccactsivevesevesesee 10 Moor v. Texas & N. O. RB. Co., 297 U.S. 101, 80 L. Ed. 509, 56 S. Ct. 372 (1936) .... 7 Morrison v. Work, 266 U.S. 481, 69 L. Ed. EE re 7 Muir v. Chatfield, 255 F. 24 (2nd Cir. Nis ckdevedsesenevers oer oe 8 Mutual Life Ins. Co. v. Holly, 135 F.2d 676 Svar. £943) ......... Nes eine ci adink kiwi bacon 8 New York C. R. Co. v. White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667 (1917) .... 4 -XV11- Cases — Continued: New York v. Shore Realty Corp., 763 F.2d OD Ce Cae. I yi Fides ctoa cnc icate dake 10 O'Neal v. Riceland Foods, 684 F.2d 577 CEES Sia REE wakcesasincsccceausiiebieteibaneccees 26 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98S. Ct. 2380, 57 L. Ed. 2d 253 CR Pe was davcnces su niacd ceo cea ehaoanebeunees 26 Parr v. United States, 351 U.S. 513, 100 L. Ed. 13877, 76S. Ct. 912 (1956), reh. den., 352 U.S. 859, 1 L. Ed. 2d 69, 77S. Rei: Boe EE aidan divdnivircariseurenimateiccwedts 9 Petition of Henneman, 137 F.2d 627 (1st CAM. MO isin chs nev sabes veep bbnue aaa Radeon anes 8 Pratt v. Stout, 85 F.2d 172 (8th Cir. 1936) 7 Public Utilities Com. v. Capital Transit Co., 214 F.2d 242 (App. Dis. Col. 1954) ..... 11 Rich v. Martin Marietta Corp., 522 F.2d eae COMERS Cae BF cnc snc ck Sup ewbandbvce ces 27 Roach v. First Nat'l Bank, 84 F.2d 969 EEE Sci. SD statis woimecaeceieieas ee eae. 7 Sanders v. Shell Oil Co., 678 F.2d 614 (5th 0) Be. . : nee Pete ibis het sid REE OR ad ks 25 SEC v. Torr, 87 F.2d 446 (2nd Cir. 1937) .. 10 Sinclair Refining Co. v. Mid’2and O11 Co., Sey ee OE LAC Ae, TE ais va vSinkakisiowrics 7 -XVlll- Cases — Continued: Snauffer v. Stimson, 155 F2d 861 (App. I I ae cin cack cubiin Geudaneeensesen 11 Susquehanna Valley Alhance v.. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3rd Cir. 1980), cert. den., 449 U.S. 1096, 66 L. Ed. 2d 824, 101 S. Ct. 893 (1981) ..... 10 | Swanner v. United States, 406 F.2d 716 Ss I i Si se Nc cens ck es co se wan deececeas 28 \ Tanner v. McCall, 625 F.2d 1183 (5th Cir. IE sce cinoedeedts Ovilie cas hnseucauhvunwamsaevvedst y a Trautwein v. Moreno Mut. Irr. Co., 22 Be 7 Cite GAT. BOD) ons evince cssevecccccescs: 7 United States Alkali Export Ass'n v. United States, 325 U.S. 196, 89 L. Ed. $604, OG :S. Cb: LIBS CIO4D) o ossivcciccssicnses. 9 United States v. Carter, 270 F.2d 521 (9th RRR IRREIN Easel eve per Oey Dn cn Rees oN aR ea 5 Mey. United States v. Hall, 145 F2d 781 (9th Cir. 1944), cert. den., 324 U.S. 871, 89 L. Ed. 1425, 65 S. Ct. 1016 1945) ............... 8 United States v. Mellon Bank, N. A., 545 ee 8 Ee Ay: pn 11 United States v. New York Tel. Co., 434 U.S. 159, 54 L. Ed. 2d 376, 98 S. Ct. 364 SE cna sda eh eet ce 9 United States v. Salinas, 693 F.2d 348 re ee 5 hic op ks can ccucsdecicabinevsineas ees 9 -X1X- Cases — Continued: United States v. Sorren, 605 F.2d 1211 a all aiakicn United States v. United States Dist. Court, 206 F.2d 303 (9th Cir. 1953) ......... Vuitton et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769 (9th Cir. MEE ci rctindavahon snlepbuecnekcaueniiad ibaa ide aatis Waddell v. Alldredge, 480 F2d 1078 (8rd Re ND gion tach busccauindanus puwhcetoanatedieeseue sass Weahkee v. Norton, 621 F.2d 1080 (10th RE NE hic canna ecun indus oucmeep eee me daaeeinss Westchester Day Sch. v. Village of Mamaroneck, 386 F.3d 183 (2nd Cir. eg ee ee Zell v. Judges of Circuit Court, 149 F. 86 SO, SEI 1s vi cc aniicicmininacmionnnmuewam sais Constitutional Provisions, Statutes and Rules: WO. FUMIE OE HE. FE ovine cnccs sdscnisenceces ee eB niickvkontalididindaiesenewauenedns Pi eG WI TID tacnvocvescnaseaicsennenuine en eM BE iki d ence vkebdsvccvdeaceaunece 18, 24 er NE iss cs che ces se dsecuctdceaes N.C. Gen. Stat. § 1A-1, (N.C. R. Civ. P.) Ee ee icc os isnt row sauekevenanouss 26, 28 -XxX- Constitutional Provisions, etc. — Continued: N.C. (sen. Stat. § TA-1 eb Seq .....c0c0cccess 18 POS. Se CS TIRO vicivsesncccveeniesicssens 24 Dare CN CI, SF EPRAINO Sccvccsvecvcwscvevsepevee 24 Bee I, SR IE oes biccducevevavvununsnes 21 Pee, SE NE FROME ss cca kaviccavsveeciadacte: 23 Pen, MOMs Ms FRAO D wectcdsucecectsansvsuess 23 oR ei eer 21, 23 N.C. Gen. Stat. § 97-1 et seq ......... ii, 4, 5, 18, 20, 27 Pe, Goeth, DUG, DFAT FD cc ccccncvscccntsceccsae 5, 18, 20 eS a ho oh EE 18 N.C. Gen. Stat. § 116-1 et seq. .............+. Vv N.C. Gen. Stat. § 143-291 et seq. ............ v, 18 N.C. Gen. Stat. § 143B-1 et seq. ............. 18 oii sckain eb venucddens 1,2 A Se iid Lic snndereadenendeburadeaee i, 2 #24 U.S. Const. amend. XIV § 1 ................... i, 2. 8. 22 ee Oe OR SED. sda cuidcdawva vase eedeacieies 2 EMERGENCY PETITION FOR WRIT OF MANDAMUS PETITION FOR WRIT OF PROHIBITION PETITION FOR A MANDATORY INJUNTION Pursuant to the Rules of this Court and the All Writs Act (28 U.S.C. §§ 1257, 1651), J. KAMAU CHRISTOPHER alk/a JOSEPH KAMAU CHRISTOPHER BEY (hereinafter referred to as the “Petitioner’) hereby respectfully petitions’ the SUPREME COURT OF THE UNITED STATES to take any emergency action appropriate to preserve appellate jurisdiction and prevent undue and abusive prejudice against the Petitioner pending review of the final judgment in this matter entered by the SUPREME COURT OF NORTH CAROLINA in favor of NORTH CAROLINA STATE UNIVERSITY, as a subordinate public office and entity in the GOVERNMENT OF THE STATE OF NORTH CAROLINA (hereinafter colléctively referred to as the “State of North Carolina”, the “State”, the “Government”, individually, or collectively and jointly, the “Respondent” or “Respondents’). OPINIONS BELOW The opinions and orders of the SUPREME COURT OF NORTH CAROLINA are unpublished (Pet. App. 23a-25a). ‘The epinions and orders of the COURT OF APPEALS OF NORTH CAROLINA are unpubhished (Pet. App. 14a-22a). The opinions and orders of the NORTH CAROLINA INDUSTRIAL COMMISSION are unreported (Pet. App. la-13a). JURISDICTION On September 4, 2008, the SUPREME COURT OF NORTH CAROLINA entered a judgment and order dismissing the Notice of Appeal and denying the Petition for Discretionary Review upon Certification filed by Petitioner (Pet. App. 23a-25a, 26a-71a). No pleading was filed with, nor order made by, the SUPREME COURT OF NORTH CAROLINA, with respect to a rehearing of this matter. This Court is authorized to review a federal question, and take any and all necessary extraordinary measures to aid said appellate jurisdiction, where a state court of last resort has passed on said question alleging the violation of any reserved and guaranteed rights, privileges, and immunities under the Constitution of the Umted States of America and the All Writs Act. See U.S. Const. art. III; 28 U.S.C. §§ 1257, 1651. STATUTORY PROVISIONS INVOLVED All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and‘ of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, lberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV § 1. INTRODUCTION The Petitioner hereby respectfully petitions the SUPREME COURT OF THE UNITED STATES to take any action appropriate to preserve appellate jurisdiction and prevent undue and abusive prejudice against the Petitioner pending review of the final judgment in this matter entered by the SUPREME COURT OF NORTH CAROLINA in favor of the Respondent affirming judgment dismissing the instant action filed with the NORTH CAROLINA INDUSTRIAL COMMISSION with prejudice (Pet. App. 1la-25a). The Petitioner has_ presented contemporaneously herewith a Petition for Writ of Certiorari showing that this Court has appellate jurisdiction in this matter, and that this matter involves an violation of the Constitution of the United States of America, which is of public importance and crucial to jurisprudence in every jurisdiction under the Constitution of the United States of America (Pet. App. 26a-88a, Record 293- 297). In preservation of this appellate jurisdiction, and to prevent any further prejudice against the Petitioner, this prayer for extraordinary relief respectfully requests all necessary action through mandate, prohibition and injunction to preserve the record and appellate jurisdiction of this Court. See Pet. App. la-88a; Record 32-175 (Petitioner’s Response to Respondent’s Motion tor Summary Judgment and Motion to Suspend Discovery, and Petitioner’s Cross Motion to Compe] Discovery), 177- 213, 280 (Petition for Extraordinary Relief before the North Carolina Court of Appeals), 291-297 (Assignments of Error for Appeal before the North Carolina Court of Appeals). STATEMENT OF CASE i. Summary of Federal Question The decisions below presents significant federal questions as to the constitutional validity of exclusions and immunities. provided to employers and co-employees by universally mandated exclusive legislative industria! insurance programs, commonly referred to as “workers’ compensation” (hereinafter referred to as the “Programs”). In New York C. RB. Co. v. White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667 (1917), this Court held that the Programs are not repugnant to the provisions of the Constitution, so long as the Programs provide an “adequate substitute” for the prohibited common law claims for civil remedy for personal injury by industrial accident in the workplace. The GENERAL COURT OF JUSTICE OF NORTH CAROLINA, comprised of the SUPREME COURT OF NORTH CAROLINA (hereinafter referred to as the “N.C. Supreme Court”), the COURT OF APPEALS OF NORTH CAROLINA (hereinafter referred to as the “N.C. Court of Appeals”), and various superior and district courts covering all jurisdictions within the State of North Carolina (hereinafter collectively referred to as the “N.C. Courts”), has applied this principle in Johnson and Smith v. First Union Corporation, 128 N.C. App. 450, 496 S.E.2d 1 (1998), cert. denied, 351 N.C. 648; 543 S.E.2d 870 (2000) and Brown v. Motor Inns of Carolina, Inc., 47 N.C. App. 115, 266 S.E.2d 848 (1980), cert. denied, 301 N.C. 86 (1980), where it was held that if the North Carolina Workers’ Compensation Act (hereinafter referred to as the “N.C.W.C.A.”) has no application and does not 5. provide an “effective administrative remedy”, the N.C.W.C.A. and the exclusivity provisions thereof have no application or effect to bar a common law claim for civil remedy against an employer or co- employee. See N.C. Gen. Stat. § 97-1 et seq. In the instant case, Petitioner duly presented numerous objections showing that, despite the fact that Petitioner was employee of Respondent at a certain time in question with respect to the personal injury in question, the N.C.W.C.A. does not provide an effective administrative remedy, and thus has no application to bar the common law claim for civil remedy filed against Respondent in the instant case (Record 32-175, 177-213, 280, 291-297). Despite these objections, the N.C. Courts passed on this appeal and these federal questions’ without adjudication of the objections presented and without significant or adequate finding of fact on the personal injury in question (Pet. App. la-25a). This dismissal was based solely on the grounds of the relationship between Petitioner and Respondent (Pet. App. 1-25a, Record 32-297). Petitioner contends that N.C.W.C.A. does not provide an adequate substitute for a common law claim for civil remedy in the instant case, and, thus, this decision does not comport with the previous holdings of this Court to insure that the interpretation and official action in invoking the relevant provisions of the N.C.W.C.A. comphes with the provisions of the Constitution of the United States of America, primarily the Fourteenth Amendment provisions for due process and equal protection (Pet. App. 26a-7la, Record 32-175, 177- 213, 280, 291-297). Moreover, the U.S. Court of Appeals has also held that a crucial federal question b exist as to if all remedies at law can be eliminated by the exclusivity provisions of a workers’ compensation law where workers’ compensation is_ ineffective. Dunlavey v. Economy Fire & Casualty Co., 887 F.2d 893 (8th Cir., 1989). Various state courts of last resort have also decided this important federal question, but there are widespread inconsistencies between the construction of the relevant statutes, the remedies provided, and the exceptions to the relevant exclusivity provisions. In many jurisdictions, the original concept of the Programs was to provide employees with guaranteed benefits for injuries in the workplace. At present, the Programs provide employers with immunity from all liability, even if the employee’s benefits provided by the Programs are not an adequate substitute for the forfeiture of common law remedy, and without regard for employees’ rights to due process. It is critical that this Court address these inconsistencies to insure that constitutional protections provided to all citizens of the United States are not violated by the letter of, or official state action in administration of, the Programs. Prayer for review by appeal was submitted contemporaneously with this prayer for extraordinary relief. This prayer for extraordinary _ relief respectfully petitions this Court to _ provide appropriate relief in light of clear, convincing and uncontroverted evidence that the Respondent willfully and intentionally destroyed documentary and physical evidence relevant to these proceedings during the pendency of these proceedings, and that the Petitioner will be further prejudiced without immediate action to prevent further prejudice and impairment of appellate jurisdiction. IT. Statutory Background In passing the All Writs Act of 1938, Congress revised and codified Sections 342 and 377 of the Judicia! Code into Section 1651 (hereinafter the “All Writs Act”, as currently codified with the provisions as amended in 1948 and 1949). The All Writs Act provides this Court, and all other courts created by Act of Congress, with the power to “issue all writs necessary or appropriate im aid of their respective jurisdictions and agreeable to the usages and principles of law.” See 28 U.S.C. § 1651. Appellate courts have inherent power to make, in its discretion, such orders as may be necessary to preserve status quo between parties until] final disposition of any pending appeal. Vuutton et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769 (9th Cir. 1981). Power of mandamus or prohibition is reserved for use in those rare instances when appellate jurisdiction would be adversely affected unless action is taken. Calrfornia v. United States District Court, 213 F.2d 818 (9th Cir. 1954). Extraordinary remedial writs are not a matter of right, but an exercise of sound judicial discretion. See Morrison v. Work, 266 U.S. 481, 69 L. Ed. 394, 45 S. Ct. 149 (1925); Moor v. Texas & N. O. R. Co, 297 U.S. 101, 80 L. Ed. 509, 56 S. Ct. 372 (1936); Trautwein v. Moreno Mut. Irr. Co., 22 F.2d 374 (9th Cir. 1927); Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42 (4th Cir. 1932): Roach v. First Nat'] Bank, 84 F.2d 969 (5th Cir. 1936); Pratt v. Stout, 85 F.2d 172 (8th Cir. 1936). A federal court, including this Court, must have appellate jurisdiction over a matter to consider granting a petition for writ of extraordinary relief. See Jn re Massachusetts, 197 U.S. 482, 49 L. Ed. 845, 25S. Ct. 512 (1905); Jn re Glaser, 198 U.S. 171, 49 L. Ed. 1000, 25 S. Ct. 653 (1905); McClellan v. Carland, 217 U.S. 268, 54 L. Ed. 762, 30 S. Ct. 501 (1910); Heflin v. United States, 358 U.S. 415, 3 L. Ed. 2d 407, 79 S. Ct. 451 (1959); Aiz// v. United States, 368 U.S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962); Ze// v. Judges of Circuit Court, 149 F. 86 (4th Cir. 1966); Muir v. Chatfield, 255 F. 24 (2nd Cir. 1918); Jn re FE:lers Music House, 284 F. 815 (9th Cir. 1922); Jn re Heilbroner, 69 F.2d 643 (2nd Cir. 1934); Henderson Tire & Rubber Co. v. Reeves, 14 F.2d 903 (8th Cir. 1926), cert. den., (1927) 273 U.S. 744, 71 L. Ed. 870, 47 S. Ct. 336 (1927): Keaton v. Kennamer, 42 F.2d 814 (10th Cir. 1930); Mutual Life Ins. Co. v. Holly, 135 F.2d 675 (7th Cir. 1943); United States v. Hall, 145 F2d 781 (9th Cir. 1944), cert. den., 324 U.S. 871, 89 L. Ed. 1425, 65 S. Ct. 1016 (1945); Petition of Henneman, 137 F.2d 627 (1st Cir. 1943); Crown Zellerbach Corp. v. Federal Trade Com., 156 F.2d 927 (9th Cir. 1964); Green v. Occidental Petroleum Corp., 541 F.2d 1335 (9th Cir. 1976); Ex parte farrell, 189 F.2d 540 (1st Cir. 1951), cert. den., 342 U.S. 839, 96 L. Ed. 634, 72 S. Ct. 64 (1951). Authority of federal courts under 28 U.S.C. § 1651 is not confined to issuance of writs in aid of jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected. Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000 (App. Dis. Col. 1964), reh. den., 331 F.2d 1010 (App. Dis. Col. 1964), cert. den., 377 U.S. 978, 12 L. Ed. 2d 746, 84 S. Ct. 1883 (1964). Statutory power of this Court to issue writs of prohibition or mandamus could be constitutionally exercised only insofar as such writs are in aid of its appellate jurisdiction, and issuance of said writs in such cases usually would be refused unless question of public importance was involved. United States Alkali Export Ass'n v. United States, 325 U.S. 196, 89 L. Ed. 1554, 65 S. Ct. 1120 (1945). Also see Fx parte Riddle, 255 U.S. 450, 65 L. Ed. 725, 41 S. Ct. 370 (1921); United States v. New York Tel. Co., 434 U.S. 159, 54 L. Ed. 2d 376, 98 S. Ct. 364 (1977); Jn re Atlantic City Railroad, 164 U.S. 633, 41 L. Ed. 579, 17 S. Ct. 208 (1897); Jn re Garrosi, 229 F. 363 (1st Cir. 19136); Estate of Whitlock v. Commissioner, 547 F.2d 506 (10th Cir. 1976), cert. den., 430 U.S. 916, 51 L. Ed. 2d 594, 97 S. Ct. 1329 (1977); Jn re Ojeda Rios, (1988, CA2) 863 F.2d 202 (2nd Cir. 1988); Aref v. United States, 452 F3d 202 (2nd Cir. 2006); Wadde// v. Alldredge, 480 F2d 1078 (8rd Cir. 1973); First Jersey Secur., Inc. v. Bergen, 605 F.2d 690 (3rd Cir. 1979), cert. den., (1980) 444 U.S. 1074, 62 L. Ed. 2d 756, 100 S. Ct. 1020 (1980); Baker Perkins, Inc. v. Werner & Ptleiderer Corp., 710 F.2d 1561 (Fed. Cir. 1983); Ex parte Republic of Peru, 318 U.S. 578, 87 L. Ed. 1014, 63 S. Ct. 793 (1943); Churdian v. Philippine Nat'l Bank, 912 F.2d 1095 (9th Cir. 1990); United States Alkali Export Ass'n v. United States, 325 U.S. 196, 89 L. Ed. 1554, 65 S. Ct. 1120 (1945): Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 26 L. Ed. 2d 100, 90 S. Ct. 1648 (1970), red. den., 399 U.S. 937, 26 L. Ed. 2d 809, 90 S. Ct. 2248 (1970); Parr v. United States, 351 U.S. 513, 100 L. Ed. 1377, 76 S. Ct. 912 (1956), reA. den., 352 U.S. 859, 1 L. Ed. 2d 69, 77 S. Ct. 21 (1956); United States v. Salinas, 693 F.2d 348 (5th Cir. 1982). -10- Mandatory injunctions are appropriate where a party would be substantially prejudiced and suffer irreparable harm without extraordinary intervention by the court, or where failure to address unusual, exceptional and extraordinary circumstances would affect the appellate jurisdiction of the court. New York v. Shore Realty Corp., 763 F.2d 49 (2nd Cir. 1985); United States v. Sorren, 605 F.2d 1211 (1st Cir. 1979); Jn re Baldwin-United Corp. (Single Premium Deferred Annuities Ins. Litigation), 770 F.2d 328 (2nd Cir. 1985); SEC v. Torr, 87 F.2d 446 (2nd Cir. 1937); Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3rd Cir. 1980), cert. den., 449 U.S. 1096, 66 L. Ed. 2d 824, 101 S. Ct. 893 (1981); Westchester Day Sch. v. Village of Mamaroneck, 386 F.3d 183 (2nd Cir. 2004). Extraordinary remedial writs are. only appropriate under unusual, exceptional, extraordinary, and compelling circumstances when no other remedy is available, and the petitioner bears a heavy burden of showing that extraordinary relief is necessary. Jn re Cheney, 334 F.3d\1096 (App. Dis. Col. 2003), vacated, remanded, 542 U.S. 367, 159 L. Ed. 2d 459, 124 S. Ct. 2576 (2004); Jn re United States, 397 F.3d 274 (5th Cir. 2005), stay lifted, remanded, 400 F.3d 277 (5th Cir. 2005), cert. den., 161 L. Ed. 2d 289 (2005); First Jersey Secur., Inc. v. Bergen, 605 F.2d 690 (8rd Cir. 1979). cert. den., 444 U.S. 1074, 62 L. Ed. 2d 756, 100 S. Ct. 1020 (1980); Michigan Ass'n of Homes & Servs. for the Aging v. Shalala, 127 F.3d 496 (6th Cir. 1997); TIiiinois Council on Long Term Care, Inc. v. Shalala, 143 F.3d 1072 (7th Cir. 1998); Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F2d 1561 (Fed. Cir. see 1983); Cheney v. United States Dist. Court, 542 U.S. 367, 159 L. Ed. 2d 459, 124 S. Ct. 2576 (2004); United States v. Carter, 270 F.2d 521 (9th Cir. 1959); Lucas v. United States, 36 F.2d 1015 (App. Dis. Col. 1929): Fisher v. Delehant, 250 F.2d 265 (8th Cir. 1957); Hartley Pen Co. v. United States Dist. Court, 287 F.2d 324 (9th Cir. 1961); John Gund Brewing Co. v. United States, 204 F. 17 (8th Cir. 1913), mod., 206 F. 386 (8th Cir. 1913); J7T Community Development Corp. v. Barton, 569 F.2d 1351 (5th Cir. 1978); International Business Machines Corp. v. United States, 480 F.2d 293 (2nd Cir. 1973), cert. den., 416 U.S. 979, 40 L. Ed. 2d 776, 94 S. Ct. 2413 (1974), cert. den., 416 U.S. 980, 40 L. Ed. 2d 777, 94S. Ct. 2413 (1974); Ex parte Abernathy, 320 U.S. 219, 88 L. Ed. 3, 64S. Ct. 13 (1943). Party seeking extraordinary relief must show that its right to relief is clear and indisputable. In re Special March 1974 Grand Jury, etc., 541 F.2d 166 (7th Cir. 1976), cert. den., 4830 U.S. 929, 51 L. Ed. 2d 773, 97 S. Ct. 1547 (1977). A petitioner for extraordinary relief must present a question that is not moot, or has become moot. Snauffer v. Stimson, 155 F2d 861 (App. Dis. Col. 1946); Boulder v. Lewis, 21 F2d 910 (8th Cir. 1927); Jackson v. Choate, 404 F2d 910 (5th Cir. 1968). Extraordinary writs are appropriate to address judicial abuse of discretion in the courts below. United States v. Mellon Bank, N. A., 545 F.2d 869 (3rd Cir. 1976); Jn re Melvin, 546 F.2d 1 (1st Cir. 1976); Public Utilities Com. v. Capital Transit Co., 214 F.2d 242 (App. Dis. Col. 1954). The party seeking extraordinary relief must promptly and timely seek such relief, and any undue or unreasonable delay in seeking relief would make such relief inappropriate. Jn re Eastern Cherokees, 42. 220 U.S. 83, 55 L. Ed. 379, 31 S. Ct. 373 (1911); Cheney v. United States Dist. Court, 542 U.S. 367, 159 L. Ed. 2d 459, 124 S. Ct. 2576 (2004); United States v. Carter, 270 F.2d 521 (9th Cir. 1959); Lucas v. United States, 36 F.2d 1015 (App. Dis. Col. 1929) Destruction of evidence is an unusual, exceptional and extraordinary circumstance without any administrative remedy that warrants extraordinary intervention and injunctive relief by the court with jurisdiction. /n re Grand Jury Proceedings of United States, 626 F.2d 1051 (1st Cir. 1980); Chase v. Robson, 435 F2d 1059 (7th Cir. 1970). Injunctions are appropriate to preserve status quo at any stage in the proceedings and prevent irreparable harm. See Henderson Tire & Rubber Co. v. Reeves, 14 F.2d 903 (8th Cir. 1926), cert. den., 273 U.S. 744, 71 L. Ed. 870, 47 S. Ct. 336 (1927); Harris v. Grbson, 322 F.2d 780 (5th Cir. 1963), cert. den., 376 U.S. 908, 11 L. Ed. 2d 606, 84 S. Ct. 661 (1964); United States v. United States Dist. Court, 206 F.2d 303 (9th Cir. 1953). A petition for review by appeal can work in conjunction with other extraordinary remedial writs if appropriate. Belbacha v. Bush, 520 F.3d 452 (App. Dis. Col. 2008). Remedy by appeal from refusal of judge to remove himself for alleged disqualifications did not preclude remedy by mandamus. or prohibition. Jn re Lisman, 89 F.2d 898 (2nd Cir. 1937). In hght of exceptional and extraordinary circumstances, remedy by appeal was inadequate, and petitioner was entitled to some measure of relief under 28 U.S.C. § 1651 to prevent grave injustice. Hartley Pen Co. v United States Dist. Court, 287 F.2d 324, (9th Cir. 1961). 45- Ill. Factual Background Prior to 1999, the North Carolina General Assembly, the legislative branch of the State Government, mandated that all constituent institutions of the University of North Carolina System (“UNC System”) inspect all facilities and provide a comprehensive report (Pet. App. 46a). In December 1999, a comprehensive report published by Respondent found that more than fifty (560%) percent of the facilities owned, operated and maintained by Respondent and commonly known as North Carolina State University (hereinafter referred to as “NCSU”, in reference to the campus, facilities, and the entire student, staff and faculty community as opposed to Respondent) failed to meet building and safety code standards (Pet. App. 46a-5la). Reports also found systematic facility deficiencies at multiple campuses in the UNC System, including North Carolina Central University (“NCCU”) and the University of North Carolina at Pembroke (“UNCP”) (Pet. App. 57a-66a). The reports also identified insufficient or inadequate heating, ventilation and air conditioning systems (“HVAC Systems”), and that numerous facilities required mitigation of asbestos and lead paint (Pct. App. 26a-88a). The reports further represented that various facilities and programs were “unsafe” and posed risks to student, staff and faculty health and safety (Pet. App. 26a-88a). It is undisputed that Petitioner enrolled at Respondent NCSU as a full-time student from August 1999 until May 2004 (Pet. App. 17a). In August 2002, Petitioner was offered and accepted employment with Respondent NCSU as a Resident Advisor, with compensation in the form of a stipend «lds below minimum wage, housing and other monetary and physical services, such as parking and spending allowances for meals (Pet. App. 17a-18a). Petitioner resided in the housing provided through employment as a Resident Advisor in Wood Hall from August 2002 to May 2003, and again from August 2003 to September 2003, and in Metcalf Hall from May 2003 to August 2003 (Pet. App. 17a-18a; Record 32-175). Prior to this period of employment, Petitioner enlisted with the United States Naval Reserve for a contract period of cight (8) years in July 2002 (Pet. App. 17a-18a). Before enlisting, Petitioner was subject to a rigorous physical ability test, and an extensive physical exam, to determine if Petitioner was physically fit and medically qualified for military service, and the United States Navy Reserve determined that Petitioner was physically fit and medically qualified for military service prior to July 2002 (Pet. App. 17a-18a; Record 32-175). In October 2001, Petitioner suffered a chronic acute respiratory infection and _ tonsillitis, which condition persisted for approximately one month, however, no cause for this condition was identified (Record 32-175). In August 2002, petitioner suffered a chronic acute respiratory infection, along with interim periods of flu-hke, bronchitis-like, and pneumonia-like chest congestion, migraine headaches, vomiting, severe weight loss, and tonsillitis, among other conditions, which conditions persisted until October 2003 (Record 32-175). On October 7, 2002, Petitioner, along with maintenance staff of Respondent, identified chronic mold growth in the HVAC System in Wood Hall (Pet. App. 52a- 54a). Maintenance staff represented, from experience, that the air filter in the HVAC System «Lo unit in question appeared to be at least two (2) years old, though the air filters should have been changed at least every six (6) months (Pet. App. 52a-54a). This was documented in an_ administrative memorandum submitted to Respondent, which was included in the record (Pet. App. 52a-88a). Between May 2003 and August 2003, NCSU, as well as the rest of North Carolina, experienced unprecedented flooding, which floodwaters penetrated various NCSU facilities (Record 32-175). In August 2003, multiple facilities were closed at NCCU and UNCP for mold growth and other health hazards, threats and risks (Pet. App. 57a-66a). Student, staff and faculty at NCSU questioned the difference in responses at NCCU and UNCP as compared to NCSU (Record 32-175). Employees of Respondent, including Petitioner, were instructed not to say the word “mold” to any students moving into on-campus facilities or their parents (Record 32-175). On September 17, 20038, an article was published in a NCSU student publication about mold and other health hazards in NCSU facilities (Record 64-65). On the same day Respondents Timothy Luckadoo and Gary Thompson exchanged e-mail correspondence amongst other’ officers and employees of Respondent (Pet. App. 80a-81a). Respondent ‘limothy Luckadoo represented to superiors that Respondent’s maintenance of the HVAC Systems and other alleged hazards was appropriate and within the prescribed duty of care owed to student, staff and faculty (Pet. App. 80a). However, Respondent Gary Thomspon represented that the conditions described in the article were common considering the age of the HVAC Systems, and that it was common knowledge for facilities staff -16- that the HVAC Systems needed to be replaced and suggested discussing such replacement (Pet. App. 8la). On the same day, Petitioner was verbally threatened by Respondent and resigned from his position of employment, and vacated the premises in question (Record 32-175). On September 24, 2003, Respondent sponsored a response to the initial article to correct any “misperceptions” or “incorrect information”, without any reference to the observations or professional opinions of maintenance or facility staff (Record 64-68). Simultaneously, the State hired numerous third party and public servant experts to test the air quality and various surfaces throughout the facilities in question at NCCU and UNCP (Pet. App. 57a-66a). Emergency construction and renovation projects were commenced in all facilities at NCCU and UNCP deemed infested with mold and other health hazards, but no emergency action was taken at NCSU (Pet. App. 46a-88a). Between September 2003 and December 2003, Petitioner, together with other student, staff and faculty at NCSU, authored a 145-page report as a rebuttal to Respondent’s published response calling a “systematic” problem of health hazards a “misperception” (Record 32-175). This 145-page report was hand delivered by Petitioner to the Respondent Office of the Governor of the State of North Carolina (hereinafter referred to as_ the “Governor’) on January 21, 2004 (Pet. App. 55a-56a). On January 23, 2004, the Respondent North Carolina Department of Health and Human Services, on behalf of the Respondent Governor, confirmed receipt and confirmed that the State would be initiating an investigation (Pet. App. 55a-56a). -17- At the same time, Respondent ueceived and falsified information pertaining to this matter even to the authorities with executive oversight of occupational and health hazards. In a letter to the Respondent North Carolina Department of Labor, Respondent Tim Luckadoo represented that there were no systematic hazards, threats or risks to the health and safety of student, staff and faculty at NCSU, despite the representations of Respondent Gary Thompson, while specifically citing the administrative memorandum submitted by Petitioner to Respondent (Pet. App. 82a-83a). As a result, the North Carolina Department of Labor subsequently closed the case on this matter (Pet. App. 84a). At the same time, Respondent Timothy Blair represented that Wood Hall required renovation to ensure code compliance (Pet. App. 85a- 88a) Petitioner was honorably discharged from the United States Navy Reserve in June 2005 due to the acquisition of chronic’ respiratory conditions, primarily extrinsic asthma (Pet. App. 17a-18a). The early termination of this enlistment contract was caused by the medical disqualification of Petitioner for medical service and resulted in significant monetary damage to Petitioner (Pet. App. 17a-18a). During this interim period, Respondent never conducted the investigation called by the Governor to the same standards used in the investigations and inspections at NCCU and UNCP, such as air quality or toxicity test (Pet. App. 26a-88a). -18- IV. Procedural History Pursuant to the North Carolina Tort Claims Act, N.C. Gen. Stat. § 143-291 et seq., Petitioner filed a certain affidavit of tort claim on December 30, 2005 (hereinafter the “Tort Claim”) with the NORTH CAROLINA INDUSTRIAL COMMISSION (hereinafter referred to as the “Trial Court”), naming Respondent as committing negligence acts in the breach of Respondent’s duty of care to Petitioner, which breach was the direct and proximate cause of injury to Petitioner (Record 2-5). The Trial Court is an executive administrative agency created by the North Carolina General Assembly pursuant to N.C. Gen. Stat. § 97-77, which is not part of the N.C. Courts, but is authorized to hear judicial claims as a trial court brought under the North Carolina Tort Claims Act and the N.C.W.C.A. by the power vested by the North Carolina General Assembly. See N.C. Const., art. I, § 6; N.C. Const. art. IT], § 1; N.C. Const. art. III], § 11; N.C. Const., art. IV, § 1; N.C. Const. art. IV, § 3; N.C. Gen. Stat. § 7A-1 et seq.; N.C. Gen. Stat. § 143B-1 et seq.; Jn re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 92 N.C. App. 1, 373 S.E.2d 572 (1988), rev'd on other grounds, 324 N.C. 373, 379 S.E.2d 30 (1989). On March 9, 2006, Respondent timely filed an answer to the Tort Claim denying all guilt, and presenting three (3) affirmative defenses, which were N.C.W.C.A. exclusivity provisions based = on Petitioner’s employment with Respondent, statute of limitations, and contributory negligence, and simultancously served Petitioner with a discovery request (Record 6-31). Petitioner responded to o L Be Respondent’s discovery request on May 1, 2006, and simultaneously served Respondent with a discovery request (Record 32-175). In said discovery request, Petitioner made reference to announced renovation of certain facilities owned, operated and maintained by Respondent which were identified as the direct and proximate cause of personal injury to Petitioner (Record 108-127). Petitioner also addressed all three (3) of Respondent’s affirmative defenses by asserting, through sworn testimony and narrative responses, that (i) the personal injury of Petitioner was attributable to the negligence of Respondent during the time both before and after employment; the personal injury of Petitioner did not “arise” by “accident” “out of and in the course and scope of the employment”; and the personal injury of Petitioner was caused by the “intentional misconduct” of Respondent, which was defined as “misconduct substantially certain to cause serious injury or death” to Petitioner; (ii) the accrual of the personal injury of Petitioner occurred on June 9, 2005, even though Petitioner initiated a _ relationship with Respondent in August 1999, and Petitioner was diagnosed with the medical condition identified as the personal injury in question in November 2008, and (iii) Petitioner made every reasonable effort to meet or exceed his duty of care to himself, while at the same time Petitioner was deceived by Respondent, who provided misrepresentations as to the duty of care owed to Petitioner, and the hazards, threats and risks to Petitioners health, of which Respondent was aware (Record 108-127). In an internal memorandum dated June 9, 2006, which Respondent provided to Petitioner through a public records requests, Respondent made -20- no mention of the affirmative defenses of statute of limitations or contributory negligence and counsel for Respondent questioned if the affirmative defense of N.C.W.C.A. exclusivity would be a “viable motion”, but that it was being “considered” (Pet. App. 85a- 86a). Respondent also began drafting a response to Petitioner’s discovery request, which draft Respondent provided to Petitioner through public records requests, disclosing that Respondent intended to proceed with the renovations as scheduled during the proceedings, and that the renovations, announced by press release on January 31, 2006, after the filing of this claim, wouid provide substantial alteration of the heating, ventilation and air conditioning system (“HVAC System”), which was recommended by Petitioner and Respondent Gary Thomspon in 2003 (Pet. App. 87a-88a). On July 20, 2006, Respondent filed a motion for summary judgment and motion to suspend discovery during the pendency of discovery exchange without providing a _ response to _ Petitioner’s discovery request, in which Respondent abandoned the affirmative defenses of statute of hmitations and contributory negligence and asserted the applicability of the N.C.W.C.A. and the exclusivity provisions thereof (Record 10-31). On August 11, 2006, Petitioner responded with a thorough response and a Cross-Motion to Compel Respondent to respond to Petitioner’s discovery request, in which Petitioner provided Petitioner's entire discovery response, including exhibits, showing that there were genuine issues of triable issues as to the time, place, circumstance and nature of the personal injury in question (Record 32-175). Most relevant, Petitioner showed that (1) Respondent failed to show -21- 29 «66 that the injury in question “arose” by “accident” “out of and in the course and scope of the employment”, (3i) Respondent was alleged to have committed “intentional misconduct” which was the direct and proximate cause of personal injury to Petitioner, (111) the injury did not “arise” by “accident” “out of and in the course and scope of the employment”, (iv) Petitioner was prejudiced by the suspension of discovery, and (v) there existed genuine issues of material fact and triable issues of fact as to all of the foregoing contentions (Record 32-175, 177-213). No significant or adequate findings of fact were made on the injury, and the Trial Court dismissed this Tort Claim with prejudice (Pet. App. 1a-25a). Petitioner duly, timely and properly filed an appeal of right and petitions for extraordinary relief with the N.C. Court of Appeals asserting violation of constitutional rights to due process and equal protection under the law, pursuant to N.C. Gen. Stat. § 7A-29; N.C. Gen. Stat. § 7A-32 (Record 268-270). On October 30, 2007, Petitioner filed a Petition for Writ of Mandamus, Prohibition and Supersedeas, with an Incorporated Petition for an Immediate Change of Venue and New Trial with the N.C. Court of Appeals, seeking extraordinary relief given the renovation of the facilities in question and other misconduct by the Trial Court (Record 280). The N.C. Court of Apveals denied Petitioner’s Petition by orders entered on November 14, 2007 (Pet. App. 14a- 15a). On December 14, 2007, Petitioner duly, timely and properly filed the Record on Appeal with the N.C. Court of Appeals, which contained the questions for appellate review, which included questions challenging the actions of the Trial Court as a violation of the rights of Petitioner to equal mB protection and due process of law under the Constitution of the State of North Carolina and the Constitution of the United States of America, primarily citing the provisions of the Fourteenth Amendment of the Constitution of the United States of America (Record 1-299). In pertinent part, these appellate questions contended that, after the course of due process where Petitioner and Respondent were afforded the opportunity to plead before the authorized administrative agency with statutory authority as a trial court, Petitioner was denied his right to due process in obtaining evidence relevant to these proceedings from the opposing party and incorrectly assigned a_ statutory classification without adequate evidence, in violation of the Fourteenth Amendment of the Constitution of the United States of America (Record 293-297). Petitioner duly, timely and properly filed a brief in support of appeal with the North Carolina Court of Appeals, which provided further legal and factual support for the questions for appellate review (Pet. App. 16a-22a). Respondent duly, timely and properly responded (Pet. App. 16a-22a). Petitioner moved the N.C. Court of Appeals to allow Petitioner to submit a reply brief, which motion was granted, due to the pow cuestions Respondent raised in an attempt to disqualify evidence submitted by Petitioner (Pet. App. 16a-22a). The N.C. Court of Appeals allowed Petitioner’s reply brief in which Petitioner asserted the summary judgment hearing provided all parties wih the opportunity to present any and all evidence in support of the assertions and defenses made at the hearing (Pet. App. 16a-22a). On May 20, 2008, the Court of Appeals entered an order affirming the dismissal of this Tort Claim, -23- citing that the findings and conclusions of law are conclusive if supported by the competent evidence, and further finding that it was not necessary to address the remaining assignments of error presented by Petitioner (Pet. App. 16a-22a). Petitioner duly, timely, and properly filed a Notice of Appeal of Right, Petition for Discretionary Review, and Petition for Writ of Supersedeas with the N.C. Supreme Court again asserting violation of constitutional right to due process, pursuant to N.C. Gen. Stat. § 7A-30; N.C. Gen. Stat. § 7A-31; N.C. Gen. Stat. § 7A-32 (Pet. App. 23a-25a). Respondent filed a Motion to Dismiss the Appeal in response (Pet. App. 23a-25a). Simultaneously upon filing and service of same, Petitioner submitted a formal request for public information and public records to the Government of the United States of America and the Government of the State of North Carolina in order to obtain documentation and evidence relevant to these proceedings to circumvent the suspension of discovery (Pet. App. 26a-88a). Between June 1, 2008 and August 20, 2008, Petitioner accumulated over 2,000 pages of documentatior relevant to the factual questions of the nature of the injury, the condition of the facilities in question, which are owned, operated and maintained by Respondent, the _ alleged intentional misconduct of Respondent and _ the renovation of certain facilities in question, which are owned, operated and maintained by Respondent (Pet. App. 26a-88a). Despite this pending appeal during this correspondence exchange, Respondent referred to this Tort Claim as “failed”. (Pet. App. 72a-73a). On August 22, 2008, Petitioner filed a Motion for Temporary Stay, Motion to Amend the Record on Appeal and Motion to Expedite the Appeal, together -24- with 481 pages of documentation obtained in response to the request for public information and public records (Pet. App. 26a-71a). This documentation, authored by Respondent, and authorized third party private experts, showed that Respondent had committed intentional misconduct, which was the direct and proximate cause of injury to Petitioner (Pet. App. 26a-71la). This documentation further showed that the Respondent was well aware that the hazards to which the Petitioner was exposed were recognized and known to be substantially certain to cause serious injury or death, and that the hazards were such that the general public was equally exposed (Pet. App. 26a- 71a). N.C. Supreme Court granted Respondent’s Motion to Dismiss the Appeal and denied all of the Petitioner’s petitions contemporaneously on September 4, 2008 (Pet. App. 23a-25a). The North Carolina Supreme Court is the court of last resort in the State of North Carolina and is the court of original and supreme appellate jurisdiction. See N.C. Const. art. [1V; N.C. Gen. Stat. § § 74-25, 7A-26. The order of the North Carolina Supreme Court is final, and dismisses this matter in all respects (Pet. App. 23a-25a). V. Relief Sought The Petitioner seeks relief in order to mandate the Respondent provide an accounting of the evidence relevant to this matter and the preservation of the record in this matter, prohibit the Respondent from destroying any further evidence, and enjoin the Respondent by mandatory injunction for same. -25- JUSTIFICATION FOR GRANT OF THIS WRIT :. This relief sought invoived alleged due process violations under the appellate jurisdiction of this Court, and, appeal does not provide adequate relief for said violations, thus urgent and immediate extraordinary relief is required Where this Court is presented with a question or a violation of due process rights due to a lower court’s abuse of discretion, this Court reviews the entire record. Sanders v. Shell Oil Co., 678 F.2d 614 (5th Cir. 1982); Coughlin v. Lee, 946 F.2d 1152 (5th Cir. 1991); Trevino v. Celanese Corp., 701 F.2d 397 (Sth Cir. 1983). In reviewing an order granting pre- trial judgment, evidence, as well as outstanding discovery, should be viewed in the lhght most favorable to the party that opposed the motion. Hyre v. McPonough Power Equip., Inc., 755 F.2d 416, 419 (5th Cir. 1985); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). Federal Rule of Civil Procedure 26(b) permits “discovery regarding any matter not privileged, which is relevant to the subject matter in the pending action" and discoverable information is not limited to admissible evidence, but includes anything "reasonably calculated to lead to the discovery of admissible evidence." Hardy v. Chemetron Corp., 870 F.2d 1007 (5th Cir. 1989); Dunbar v. United States, 502 F.2d 506 (5th Cir. 1974). Similarly, the discovery rules of the North Carolina Rules of Civil Procedure guarantee that parties “may obtain’ discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or -. .* defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter’. N.C. Gen. Stat. § 1A-1, (N.C. R. Civ. P.) Rule 26 et seq. Courts have traditionally construed "relevance" broadly, finding that information is relevant if it "encompass[es] any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Thus, although the lower courts are customarily accorded wide discretion in handling discovery matters, this Court will not uphold a ruling which has failed to adhere to the liberal spirit of the discovery principles or which results in fundamental unfairness at trial. Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973); O'Neal v. Riceland Foods, 684 F.2d 577 (8th Cir. 1982). In light of the federal questions presented herein, it is clear that the N.C. Courts abused their discretion in this matter (Pet. App. la-88a). As demonstrated by the record, the pendency of this appeal has not served as an adequate stay of these proceedings (Pet. App. la-88a). The Respondent has plainly and unequivocally represented that facilities material to the instant action have been renovated by Respondent during the pendency of said action (Pet. App. 26a-88a). Further, the Respondent has not been held to account at any point in these proceedings to show good faith efforts to preserve any other documentary or physical evidence relevant -27- to the instant action, despite the pleadings of the Petitioner (Pet. App. 26a-88a, Record 1-299). As discovery must provide the parties with access to any matter not privileged relevant to the subject matter jurisdiction of the pending action, denial or delay of access to circumstantial evidence that addresses any questions of subject matter jurisdiction is a substantial prejudice of fundamental due process rights. Tanner v. McCall, 625 F.2d 1183 (5th Cir. 1980). In the instant case, despite the fact that the N.C. Courts did not adjudicate the objections presented by Petitioner, Petitioner had the burden of proving that the exclusivity provisions of the N.C.W.C.A. do not apply to bar this common law claim for civil remedy (Pet. App. la-88a). To substantiate these objections, the Petitioner was required to provide evidence of. any intentional misconduct of the Respondent, equal risks of injury to the general public, and ineffectiveness of N.C.W.C.A. as an administrative remedy (Pet. App. la-88a). As evidenced by the pleadings before the N.C. Courts, the N.C. Courts should have allowed for wide discovery to obtain the relevant circumstantial evidence (Pet. App. 26a-88a, Record 1-299). See Burns, Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983); Weahkee v. Norton, 621 F.2d 1080 (10th Cir. 1980); Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975); Marshal] v. Westinghouse Electric Corp., 576 F.2d 588 (5th Cir. 1978). In the instant case, the N.C. Courts did not deny or overly restrict discovery sought by Petitioner, but heard this matter on _ the Respondent’s Motion for Summary Judgment before 28. the Petitioner was provided his due process right to obtain evidence relevant to these proceedings from Respondent, most of which evidence is, or was, in the exclusive control of the Respondent (Pet. App. la- 88a). It has already been shown that this evidence was extremely relevant and critical to the Petitioner’s objections (Pet. App. la-88a). Furthermore, N.C. Courts took no action to preserve the record at any time during the pendency of this appeal (Pet. App. 1la-88a). While the Respondent has various policies protecting certain records and documentation held by the Respondent, the N.C. Courts had to weigh the policies of Respondent and_ privilege = and confidentiality of personal information against the need for the Petiticner to obtain evidence in litigation. See Fed. Rule of Evid. 501; N.C. Gen. Stat. § 1A-1, (N.C. R. Civ. P.) Rule 26 et seq.; Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970); Kerr v. United States Dist. Ct. for Northern Dist., 511 F.2d 192 (9th Cir. 1975), affirmed, 426 U.S. 394, 96S. Ct. 2119, 48 L. Ed. 2d 725 (1976); Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974, 91S. Ct. 1191, 28 L. Ed. 2d 323 (1971); Swanner v. United States, 406 F.2d 716 (5th Cir. 1969); Association for Reduction of Violence v. Hall, 734 F.2d 63 (1st Cir. 1984). As evidenced by the procedural history in this matter, most of the relevant documentation was not privileged, but public records (Pet. App. 26a-88a). Given these facts, this Court has appellate jurisdiction since the automatic stay by appeal has not, and will not, provide adequate relief to ensure preservation of appellate jurisdiction (Pet. App. la- 88a, Record 1-299). -29- II. The Petitioner has presented clear and convincing evidence that this matter involves an issue of public importance and _ appellate jurisdiction will be impaired without extraordinary relief This Court has held that only the court having original jurisdiction in an action has the authority to hold a party in contempt for violation of an order or destruction of evidence, however, the destruction of evidence which is the subject of a matter pending on appeal threatens the preservation of appellate jurisdiction. Merrimack River Sav. Bank v. Clay Center, 219 U.S. 527; 31 S. Ct. 295; 55 L. Ed. 320 (1911). Though the Respondent is accurate in arguing that the outcome of this appeal is only relevant to Petitioner, the adjudication of this matter on appeal is an issue of crucial public importance. The evidence clearly shows that the Respondent has acknowledged the public importance of the documentary and physical evidence in question in both this prayer for extraordinary rehef and the Petitioner’s simultaneous prayer for appellate review of this federal question. Respondent thoroughly inspected and reported on the conditions of every facility under the jurisdiction of the UNC System in December 1999, including the facilities maintained, owned and operated by Respondent at NCSU, and found that the facilities in question posed. safety risks. Respondent closed numerous facilities owned, operated and maintained by Respondent in 2003 and simultaneously called for the initiation of a numerous’ investigations into’ this’ matter. Respondent declared a state of emergency and -30- modified standard protocol to remove standard jurisdiction of the UNC System over the facilities in question at NCCU and UNCP, and called for the assistance of NCDHHS, NCDOA and the federal government. Respondent ordered the temporary relocation of residential accommodations and educational programs to ensure the health and well being of student, staff and faculty at NCCU and UNCP, which conditions Petitioner has established by competent evidence posed identical threats, risks and hazards to Petitioner and others similarly situated at NCSU (Pet. App. 26a-88a). As evidenced by the record’ through documentary and physical evidence created by Respondent, Respondent was negligent in the maintenance of said facilities, particularly in the maintenance of HVAC systems, and remediation of asbestos and lead paint. Respondent attempted to distort, misrepresent, and misjead the Petitioner, and others similarly situated, regarding the well documented and _ scientifically supported health hazards, risks and threats. Even though the Governor called an investigation into the specific facilities identified in the instant action, NCSU failed to conduct the investigation, and renovated Wood Hall during the pendency of the instant action (Pet. App. 26a-88a). Moreover, any modification of due process through legislation must not violate constitutionally protected due process rights of any party. In hght of the foregoing, it is clear and convincing that this matter involves an issue of public importance, to both jurisprudence and public health, and that appellate jurisdiction will be impaired without immediate extraordinary relief. i III. As the Petitioner has exhausted all administrative remedies and no other remedy exists, this Court has an independent jurisdiction to review this matter on appeal and provide the extraordinary relief sought herein As this action is not under the original or appellate jurisdiction of the United States District Court for the Eastern District of North Carolina, or the United States Court of Appeals for the Fourth Circuit, said courts cannot provide the extraordinary relief sought herein (Pet. App. 1la-25a). Petitioner has shown that Petitioner has exhausted all administrative remedies in the N.C. Courts, and has sought the extraordinary relief sought herein before all courts with original and appellate jurisdiction in the N.C. Courts, and has not received any rclief to date (Pet. App. la-88a; Record 32-299). It is well established that appellate jurisdiction on a federal question passed upon by a state court of last resort lies with this Court (Pet. App, 23a-25a; Record 293-297). It is within the independent jurisdiction of this Court to consider this matter and provide necessary relief (Pet. App. 23a-25a; Record 293-297). In hight of the foregoing, it is essential that the relief sought herein be granted in order to prevent further unjust prejudice against the Petitioner and to prevent further impairment of appellate jurisdiction.