Malcolm Jones Howard
How Judge Howard decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Judge Howard reads the North Carolina Wage and Hour Act broadly in favor of workers and rejects employer constructions that would let an employer escape paying for plainly compensable work by re-labeling it. Rejecting an argument that the payday statute required an express contract to pay for 'donning and doffing' time, he held the statute reaches all time an employee is 'suffered or permitted to work.' Practical lesson: a worker-protective, plain-text reading of the wage statutes carries weight with him, and employer arguments that defeat the statute's purpose do not.
“Were the court to interpret § 95-25.6 as requiring plaintiffs to prove that their employer expressly agreed to pay them for particular services performed ... an employer would be able to avoid payment of any wages to his employees by simply claiming that the services rendered, although for the benefit of the employer, were something other than “work.” Butterball’s argument here flies in the face of the protections afforded employees by the North Carolina Wage and Hour Act and cannot be sustained.”
On government-speech restrictions, Judge Howard will uphold a content-based rule in a non-public forum (such as a military base) so long as it is applied even-handedly, but he treats viewpoint discrimination as fatal regardless of the forum. He struck down as applied a Camp Lejeune decal regulation that barred anti-Islam messages while tolerating pro-Islam ones. Practical lesson: an as-applied showing that a facially neutral rule was enforced selectively against one side of a debate is a winning argument before him.
“Such viewpoint discrimination is, the most egregious form of content discrimination and is impermissible regardless of the nature of the forum.”
Procedural preferences
At summary judgment Judge Howard holds the non-moving party strictly to its burden to come forward with specific record evidence; he treats an unrebutted evidentiary showing as conceded. Where a plaintiff, given extra time, filed nothing to counter the defendant's affidavits and documents, he resolved the dispositive fact against the silent party and entered judgment. Practical lesson: do not rest on the pleadings or skip a substantive response -- an unanswered factual showing will be taken as established.
“In failing to counter defendant’s evidence, plaintiff has failed to show that a genuine issue exists as to whether plaintiff acted as a reinsurance intermediary.”
Cautions
A statutory good-faith or reliance defense fails before Judge Howard unless the party proves actual, documented reliance on an official ruling or interpretation; a general assumption that one was complying because no agency objected is not enough. He rejected an employer's Portal-to-Portal Act good-faith defense on that basis. Practical lesson: come with the specific agency authority you relied on, not a record of mere participation in a program.
“Merely participating in the H-2B program for several years and assuming you were in compliance because the government never told you otherwise is not sufficient to meet the heavy burden required to take advantage of the good faith defense.”
Motion outcomes
Counted from classified signed orders only. Percentages are shown only where the sample is large enough to be meaningful; smaller samples are reported as raw counts.
| Summary judgment N = 9 |
Granted: 4Granted in part: 3Denied: 2 | counts only |
| Motions to dismiss N = 1 |
Granted: 1 | counts only |
| Class certification N = 1 |
Granted: 1 | counts only |
A "1 of 1" is one ruling, not a tendency. Treat small samples as illustrative, not predictive.
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“For the foregoing reasons, the court GRANTS defendants' motions for summary judgment [DE # 37, 40] as to plaintiffs § 1983 claims. The court declines to exercise supplemental jurisdiction over plaintiffs state-law claims and, therefore, DISMISSES them WITHOUT PREJUDICE.”
“Plaintiffs' motion for partial summary judgment [DE # 38] is DENIED as to defendants' liability on plaintiffs' FLSA claims for deduction of transportation and visa expenses that arose prior to August 1, 2006, and GRANTED as to defendants' liability on all other claims.”
“Defendants' motion for partial summary judgment [DE # 40] is GRANTED as to plaintiffs' FLSA claims for deduction of transportation and visa expenses that arose prior to August 1, 2006 (because of no finding of willfulness), and is DENIED in all other respects;”
“Gaxiola's motion for class certification of the NCWHA claims [DE # 41] is GRANTED and these claims are certified as a class action under Rule 23 of the Federal Rules of Civil Procedure;”
“Defendants' motion to dismiss plaintiffs' strict liability claims (Counts 1-3) [DE # 3 & 10] is GRANTED; and”
“The summary judgment motion filed by defendants Wyeth and Schwarz [DE #40] is GRANTED as to all claims against them. Defendants Wyeth and Schwarz shall be dismissed from this action.”
“defendant's Motion for Partial Summary Judgment filed February 11, 2008 [DE # 29] is GRANTED in part and DENIED in part”
“defendant's Motion for Partial Summary Judgment filed June 20, 2008 [DE # 66] is DENIED.”
“Consequently, the court DENIES defendants’ motion to dismiss or for summary judgment [DE # 20] and GRANTS plaintiffs motion for summary judgment [DE # 19].”
“GRANTS plaintiffs motion for summary judgment [DE # 19]. Defendants, their employees, agents and successors in office, are hereby permanently ENJOINED from enforcing Base Traffic Regulation BO 5560.2M, Chapter 2, ¶ 7 in a manner that discriminates against speech based on the viewpoint expressed.”
“For the foregoing reasons, the court hereby GRANTS the defendant’s motion for summary judgment and DENIES the defendant’s motion to offer additional authority. The clerk is directed to close this case.”
A federal prisoner's motion to vacate his armed-career-criminal sentence under 28 U.S.C. Section 2255, brought after the Fourth Circuit's en banc decision in United States v. Simmons (applying Carachuri-Rosendo) narrowed which North Carolina convictions count as predicate felonies. Judge Howard found the motion timely and not procedurally barred, agreed the petitioner was no longer an armed career criminal, and -- finding no qualifying predicate for the felon-in-possession conviction itself -- entered an interlocutory order directing the government to show cause: "the court hereby ORDERS the government to show cause, if any, within five (5) days of the date of this order, why petitioner's motion should not be granted, the judgment previously entered in this case vacated and petitioner discharged forthwith." Recorded as an order read; excluded from the motion statistics because it is an interlocutory show-cause order, not a final disposition.
Caseload & timing
From public federal docket records for this judge.
Median case duration in the sampled dockets: 196 days (N = 9).
Across the cases that enumerate under his name, Judge Howard's docket in his senior years is dominated by prisoner petitions and post-conviction motions to vacate sentence under 28 U.S.C. Section 2255 and related claims against the United States (Federal Tort Claims Act and habeas), reflecting the reduced, screening-heavy docket a senior judge typically carries. This is an administrative, observational sketch from a thin and recent sample of the docket, not an authoritative caseload baseline for his full career on the bench.