Glenn Tate v. Showboat Marina Casino Partnership

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1681
G LENN T ATE , et al.,
Plaintiffs-Appellants,
v.
S HOWBOAT M ARINA C ASINO P ARTNERSHIP , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 3432—Amy J. St. Eve, Judge.
____________
A RGUED O CTOBER 24, 2005—D ECIDED D ECEMBER 13, 2005
____________
Before POSNER , W ILLIAMS , and S YKES , Circuit Judges.
P OSNER , Circuit Judge. This case is a sequel to Harkins
v. Riverboat Services, Inc., 385 F.3d 1099 (7th Cir. 2004),
decided a year ago, where, affirming a jury’s verdict,
we held that the members of the operating crew of a
gambling boat that is most of the time moored rather than
sailing are nevertheless “seamen” within the meaning of the
provision of the Fair Labor Standards Act that exempts
seamen from the Act’s overtime provisions. FLSA § 13(b)(6),
29 U.S.C. § 213(b)(6). Noting that the plaintiffs were classi-
fied as seamen for purposes of the special benefits to which

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2 No. 05-1681
the Jones Act and the admiralty doctrine of maintenance
and cure entitle persons so classified (a classification that
confers benefits that they would be very reluctant to give
up), we said that “when persons employed on a ship, even
so atypical a one as an Indiana gambling boat [that most of
the time is moored rather than sailing], are classified as
seamen for purposes of entitlement to the special employ-
ment benefits to which seamen, including therefore these
plaintiffs, are entitled, a presumption arises that they are
seamen under the FLSA as well.” 385 F.3d at 1103. We
added that “the presumption could probably be rebutted in
a case in which a person employed on a ship was engaged
in activities that had no maritime tincture whatever; an
example would be a waiter employed on a cruise ship to
serve meals to the passengers at regular hours.” Id. But the
presumption was not rebutted, “because none of the
plaintiffs is a croupier, cashier, bouncer, dealer, waiter, or
entertainer; all are (or so the jury could reasonably find)
members of the ship’s operating crew.” Id. “A blackjack
dealer does not become a seaman by virtue of leaving his
job at Harrah’s land-based casino and taking a job at
Harrah’s riverboat casino, but likewise a helmsman does not
cease to be a seaman because he transfers to a casino boat
that spends most of its time moored. It was for the jury to
decide whether the three plaintiffs whose overtime claims
survived to trial were more like the helmsman than like the
blackjack dealer.” Id. at 1104.
The present case is materially identical to Harkins. It
involves the same boat, the same job titles (with trivial
variances that the plaintiffs do not try to make an issue of),
an overlapping time period, the same plaintiffs’ lawyer. The
defendants are different—they are successors to the defen-
dants in Harkins—but the only material difference between
the two cases is the identity of the plaintiffs; because they

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No. 05-1681 3
are different people from the plaintiffs in Harkins, their suit
is not barred, as a matter of res judicata or collateral
estoppel, by the judgment in that case. But what about stare
decisis? The lawyer contends that the Harkins decision is
distinguishable because there his clients lost after a trial and
here they lost on summary judgment. That is a distinction
without legal significance. The facts in the two cases are the
same and the plaintiffs in Harkins lost because, on those
facts, the jury correctly found, they had no claim. All the
plaintiffs in this case, like those in Harkins, are members of
the operating crew. None is a waiter, etc.—that is, none is an
ordinary casino worker who happens to be doing his
normal work on a floating platform rather than on one
resting on terra firma.
The plaintiffs call the statements in Harkins that we quoted
merely “dicta”—that is, things the court said, not what it
held; and only what a court holds is binding (within the
limits of stare decisis, discussed below) in subsequent cases.
But what does “dictum” (the singular of “dicta,” the two
words being used interchangeably by most opinion writers
these days) mean exactly? There are two principal contend-
ers. The first—that dictum is anything besides the facts and
the outcome—is unacceptable; as a practical matter, it
would erase stare decisis because two cases rarely have
identical facts. Michael Dorf, “Dicta and Article III,” 142 U.
Pa. L. Rev. 1997, 2035-37, 2067 (1994). But Harkins and this
case do have identical facts; so even if “dictum” were
construed so broadly, these plaintiffs would be out of luck.
The sensible alternative interpretation is that the hold-
ing of a case includes, besides the facts and the outcome, the
reasoning essential to that outcome. Henry J. Friendly, “In
Praise of Erie—and of the New Federal Common Law,” 39
N.Y.U.L. Rev. 383, 385-86 (1964) (“a court’s stated and, on its

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4 No. 05-1681
view, necessary basis for deciding does not become dictum
because a critic would have decided on another basis”). We
reasoned in Harkins that the jury’s verdict should be upheld
not because it was a reasonable resolution of contested facts
or a reasonable application of the governing legal standard
to the facts, but because the facts found by the jury, and in
this case established with equal firmness in summary
judgment proceedings, showed that the plaintiffs, because
they were part of the boat’s operating crew and in fact
engaged in maritime-related activities, were, as a matter of
law, seamen within the meaning of the FLSA. That was our
holding, and we must follow it unless given a good reason
to overrule it.
The plaintiffs’ lawyer asks us to overrule Harkins because,
he contends, it was decided incorrectly. But if the fact that a
court considers one of its previous decisions to be incorrect
is a sufficient ground for overruling it, then stare decisis is
out the window, because no doctrine of deference to
precedent is needed to induce a court to follow the prece-
dents that it agrees with; a court has no incentive to overrule
them even if it is completely free to do so. The doctrine of
stare decisis “imparts authority to a decision, depending on
the court that rendered it, merely by virtue of the authority
of the rendering court and independently of the quality of
its reasoning. The essence of stare decisis is that the mere
existence of certain decisions becomes a reason for adhering
to their holdings in subsequent cases.” Midlock v. Apple
Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005) (cita-
tions omitted). It is not a conclusive reason; the Supreme
Court has specified considerations that a court should
weigh in deciding whether to follow or to overrule a
previous decision. “[W]hen this Court reexamines a prior
holding, its judgment is customarily informed by a series of
prudential and pragmatic considerations designed to test

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No. 05-1681 5
the consistency of overruling a prior decision with the ideal
of the rule of law, and to gauge the respective costs of
reaffirming and overruling a prior case. Thus, for example,
we may ask whether the rule has proven to be intolerable
simply in defying practical workability; whether the rule
is subject to a kind of reliance that would lend a special
hardship to the consequences of overruling and add
inequity to the cost of repudiation; whether related princi-
ples of law have so far developed as to have left the old rule
no more than a remnant of abandoned doctrine; or whether
facts have so changed, or come to be seen so differently, as
to have robbed the old rule of significant application or
justification.” Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833, 854-55 (1992) (citations omitted); see
also Payne v. Tennessee, 501 U.S. 808, 827-28 (1991); Moragne
v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970).
The only effort the plaintiffs’ lawyer has made to fit his
plea for overruling to the Court’s criteria is to argue that
Harkins is inconsistent with a prior decision by this court,
Howard v. Southern Illinois Riverboat Casino Cruises, Inc., 364
F.3d 854 (7th Cir. 2004). And yes, when two decisions are
inconsistent, one of them should give way. But there is
no inconsistency.
Howard was a Jones Act case, not an FLSA case. The issue
was whether a gambling boat that the law of Illinois
required to be permanently moored was a “vessel in
navigation,” for if it was not, then under the Supreme
Court’s decision in Chandris, Inc. v. Latsis, 515 U.S. 347, 373
(1995), no one working on the boat was a seaman within the
meaning of the Jones Act. We held that a perman-
ently moored gambling boat is not a vessel in navigation. In
the present case as in Harkins, neither of which involves a
boat that is permanently moored, the plaintiffs are conceded

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6 No. 05-1681
to be seamen within the meaning of the Jones Act. At all
times relevant to this case, Indiana law, unlike Illinois law
in Howard, forbade gambling boats to be permanently
moored. When in August 2002 Indiana abrogated the
prohibition, our defendants permanently moored their boat
and they and the plaintiffs’ union then agreed to modify
their collective bargaining agreement so that the plaintiffs
would be paid time and a half for overtime, consistent with
the FLSA. Whether this modification represented a tacit
acknowledgment that employees working on a permanently
moored boat are not seamen within the meaning of the
FLSA (and thus not exempt from the Act’s overtime require-
ments), and if so whether such an acknowledgment would
be a correct interpretation of the Act, is not an issue in this
case; and there is no hint in Howard that the court thought
that it was deciding the status under the FLSA of the operat-
ing crew of a gambling boat that is permanently moored, let
alone of a boat that is not.
It could be argued that what is important is not whether a
boat sails, but whether it floats, for if it floats it needs a crew
to perform distinctively maritime work in order to prevent
the boat from deteriorating and even sinking. Cf. Stewart v.
Dutra Construction Co., 125 S. Ct. 1118 (2005). The plaintiffs’
lawyer conceded at argument that the members of the crew
of a houseboat are seamen within the meaning of the Fair
Labor Standards Act, even though most houseboats are
permanently moored, like mobile homes. Nothing in
Chandris or Howard forecloses such an argument. They were,
to repeat, cases under the Jones Act rather than the FLSA.
The Jones Act provides a generous tort remedy for injuries
to seamen, in recognition, as the Court noted in Chandris,
515 U.S. at 368, of the hazards of sea duty. Those hazards
are minimal when the boat on which the “seaman” works is
permanently moored to the land, and so it was understand-

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No. 05-1681 7
able that the members of the crews of such boats would not
be considered seamen for Jones Act purposes. The overtime
provisions of the FLSA have nothing to do with the hazard-
ousness of sea duty. The pertinent fact is rather that seamen
do not work an ordinary 40-hour week. That is not because
a boat will often be at sea more than 40 hours a week, but
because it usually is impractical to use shifts and thus avoid
overtime—a ship that is at sea for a week cannot change
crews every few hours. Of course, the less extended a ship’s
voyages, the less significant this consideration is, “yet it
would be odd to think that the crew of a ferry or a tugboat
or a sightseeing boat contains no seamen because such boats
don’t go on overnight voyages.” Harkins v. Riverboat Services,
Inc., supra, 385 F.3d at 1103. We concluded that a gambling
boat that is not permanently moored should be assimilated
to these examples. And, to repeat, the plaintiffs in this case
as in Harkins are conceded to be seamen for Jones Act
purposes.
We are mindful that the actual motive for the seamen
exemption from the FLSA seems to have been unrelated
to the practical consideration just discussed: the seamen
themselves didn’t want to be covered, because under
previous law their minimum wages were set by the Mari-
time Commission under the Merchant Marine Act of 1936
and they were content with that and didn’t want to take
their chances with the new regime established by the FLSA
and administered by the Secretary of Labor. Joint Hearings
before S. Comm. on Education and Labor and H. Comm. on
Labor on S. 2475 and H.R. 7200, 75th Cong., 1st Sess. 545-47,
549, 1216, 1217 (1937); McLaughlin v. Boston Harbor Cruise
Lines, Inc., 419 F.3d 47, 54-55 (1st Cir. 2005). The exemption
from the FLSA’s minimum-wage provisions was repealed
in 1961 but the overtime provisions were retained and the
question is why; the only reason that occurs to us (we have

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8 No. 05-1681
been unable to find any relevant legislative history) is the
difference in working conditions between maritime and
landside labor.
But we are straying from the basic point, which is that
because Howard is readily distinguishable from Harkins (and
the present case), it provides no basis for our overruling
Harkins. The only other basis on which the plaintiffs’ lawyer
urges overruling is that Harkins was, he thinks, decided
incorrectly. That, as we have explained, is not reason
enough. We add that he didn’t think enough of the argu-
ment to seek either panel rehearing or rehearing en banc in
Harkins, even though an unacknowledged conflict between
two of our decisions would be an appropriate occasion for
a rehearing. Not that there is a conflict; but the present
appeal, argued by the same lawyer, claims there is.
A FFIRMED .

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No. 05-1681 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-13-05

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