Pope v. Atlantic Coast Line Railroad Company/Dissent Frankfurter
Mr. Justice FRANKFURTER, dissenting.
Pope brought an action under the Federal Employers' Liability Act against the Atlantic Coast Line Railroad, a Virginia corporation, in the Circuit Court of Jefferson County, Alabama. The action derived from an injury sustained by Pope while employed in the railroad's shops at Fitzgerald, Georgia. Fitzgerald is a town in Ben Hill County, of which Pope is, and for many years has been, a resident. Before the Alabama action came to trial, the railroad filed this suit in the Superior Court of Ben Hill County to enjoin Pope from proceeding with his action. In addition to averring the facts just recited, the railroad made allegations relating to the availability of witnesses for both parties and other factors relevant to a determination of the fairness of pursuing the litigation in Alabama. A general demurrer to this attempt to enjoin Pope from seeking to enforce his claim in Alabama was sustained by the Superior Court. The Supreme Court of Georgia, acting under the equitable doctrine of Georgia law which permits restraining a person within the State's jurisdiction 'from doing an inequitable thing', reversed. 209 Ga. 187, 71 S.E.2d 243, 245. 'The inequitable thing' which the court deemed it proper to restrain here was the accomplishment of 'the employee's purpose * * * to obtain an inequitable and unconscionable advantage over the employer' by bringing his action in Alabama. 209 Ga. at page 196, 71 S.E.2d at page 249.
Had Pope's action against the railroad in Alabama not been based on the Federal Employers' Liability Act, or had it been a negligence action by a passenger, a Georgia court could, no doubt, under the circumstances alleged in this suit, have enjoined Pope or the passenger from proceeding. Do the decisions in Baltimore & O.R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28, and Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, in light of their basis and of the congressional response to them in § 1404(a) of Title 28 of the United States Code, as revised in 1948, restrict the exercise of such general equity powers by Georgia?
I accept the Kepner and Miles decisions in the sense that I would not overrule them had Congress left them undisturbed. But Congress has cut the ground from under them.
The Court found in those two cases that Congress, by § 6 of the Federal Employers' Liability Act, had given plaintiffs unrestrainable freedom in the choice of a forum among the courts State and federal-which were authorized to entertain actions under the Act. Following the decisions in Kepner and Miles, Congress enacted § 1404(a), permitting the transfer of 'any civil action' from one federal district court to another. The rationale of Kepner and Miles foreclosed, so we had indicated, the possibility of such a transfer in Federal Employers' Liability cases. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 505, 67 S.Ct. 839, 841, 91 L.Ed. 1055. In Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207, we held that § 1404(a) had removed the barrier of the Kepner and Miles decisions and made the doctrine of forum non conveniens applicable to cases arising in the federal courts under the Federal Employers' Liability Act as well as to the generality of cases. Congress, we said, naturally enough, had not repealed § 6, which Kepner and Miles construed, but had removed the 'judicial gloss' represented by the Court's opinions in those two cases. 337 U.S. at page 61, 69 S.Ct. at page 947.
The Court now reaffirms this 'gloss' by treating it as an iron restriction not to be touched beyond the literal scope of its congressional rejection. In the Collett opinion the Court examined in detail the legislative materials pertaining to § 1404(a). It gave no intimation that Congress did any less than to remove the entire gloss of Kepner and Miles, thereby freeing us from the compulsions these two cases found in § 6. Congress plainly indicated that the compulsions were the Court's artifact, not the purpose of Congress. The Collett case rests to no small extent on the illumination cast on § 1404(a) by the Reviser's Notes in their explicit reference to Kepner as 'an example of the need of * * * a provision' 'permitting transfer to a more convenient forum.' H.R. Rep. No. 308, 80th Cong., 1st Sess., App. 132. Kepner was of course not a case of transfer from one federal forum to another. It seems strange to derive from the Reviser's reference an intention to remedy a situation not presented by the facts of the Kepner case, and yet to leave untouched a result very much like that of Kepner, which, indeed, as was found in Miles, was a necessary consequence of Kepner.
Such treatment of legislation seems to me the opposite of obedience to a statutory command. It is beside the point to urge that § 1404(a) speaks only of forum non conveniens in the federal courts and not of State court injunctions against out-of-State suits. If § 1404(a) is to be given a strictly literal scope, what is to be made of the Reviser's citation of the Kepner case, which is an inapt reference on the score of literalness, but quite apt if we consider the 'need' that Congress was meeting?
Legislation was read in this hostile spirit in the mid-Victorian days when it was regarded, in the main, as wilful and arbitrary interference with the harmony of the common law and with its rational unfolding by judges. This is an attitude that treats words as ends and not as vehicles to convey meaning. One had supposed that this niggardly view of the function of legislation had long since become outmoded. Statutes, even as decisions, are not to be deemed self-enclosed instances; they are to be regarded as starting points of reasoning, as means for securing coherence and for effectuating purpose. See Landis, Statutes and the Sources of Law, Harvard Legal Essays 213-246.
Section 1404(a) expresses a policy with respect to the enforcement of the Federal Employers' Liability Act; a policy, as the Reviser's Notes were astute to indicate, contrary to that represented by Kepner, and its offspring, Miles.  It is more than difficult to assume that Congress aimed at the result which this Court reached in the Collett case, and at the same time desired the result of Miles and of Kepner to continue to be law. Not to reject such an assumption is to attribute to Congress a disregard of the desirability of uniformity in the administration of the Federal Employers' Liability Act; more than that, it is to attribute to Congress a wish to create what may fairly be called, as we shall see, capricious and whimsical results.
The problem of avoiding abuse of the judicial process is not one that arises only in actions under the Federal Employers' Liability Act in the federal courts. Indeed, most of the actions under that Act are brought in the State courts. There is no rhyme or reason in assuming that Congress was eager to shut off abuses in the federal courts but forbade their prevention by State courts.  Congress dealt specifically with the abuses in the federal courts since, in Title 28, it was addressing itself to federal courts. But the central fact is that Congress was formulating a policy. To disregard the natural implications of a statute and to imprison our reading of it in the shell of the mere words is to commit the cardinal sin in statutory construction, blind literalness.
The doctrine enunciated by Kepner and Miles at least made for uniformity in the operation of § 6, in that those cases treated the grant of authority to State and federal courts to entertain Federal Employers' Liability actions as the grant of an unqualified right to plaintiffs, indefeasible regardless of the interests of justice affected in its exercise.  Now, under § 1404(a), federal courts may freely apply, and do apply, the doctrine of forum non conveniens to Federal Employers' Liability cases. Ex parte Collett, supra. So may State courts. Southern R. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3. Alabama is one of a minority of the States which has ruled that it will not recognize the doctrine of forum non conveniens. See Barrett, The Doctrine of Forum non Conveniens, 35 Calif.L.Rev. 380, at 388, n. 40. Only if he Brings his action in a court of one of these States can a plaintiff be sure, under today's decision, that no matter how unjustifiable his choice, the forum in which the action is brought will be the forum in which it is tried. The sole effect of our adherence to Kepner-Miles now is the creation of a haven in which the choice of a harassing forum, an activity which Congress has condemned in § 1404(a) and which therefore we no longer ought to regard as legitimate, may be carried on by virtue of our 'judicial gloss,' although it would not be tolerated in other courts in the United States, including those over which we have supervising authority.
Is it reasonable to suggest that Congress contemplated this situation? Is it fair to infer that Congress removed the 'judicial gloss' only to the extent that the strictest reading of its words indicates, no matter how mutilated this left the policy which Congress, as the Reviser's Notes show, clearly avowed?
If the suit now before us had been brought in a federal court outside Georgia, or in any one of a number of other State courts, it would in all probability have been tried in Georgia, since under the doctrine of forum non conveniens the criteria which determined the exercise by Georgia of its equity powers would have been equally decisive. This result, that is, trial in Georgia on defendant's motion in the circumstances here present, does not run counter to the policy of the Federal Employers' Liability Act; we decreed its equivalent in Collett. Nor is it that the device employed by Georgia to prevent trial in Alabama is objectionable, for it is a familiar remedy of equity employed in the interests of justice. We have sanctioned its use in other appropriate instances, see Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538, and should not deny its use to Georgia in effectuating an end whose desirability is no longer open to question.
By nothing that I have said do I mean to imply that every application by a State court of the doctrine of forum non conveniens in an action under the Federal Employers' Liability Act, or every cognate injunction, is necessarily proper, and that none may run afoul of that Act. By no technical or local procedural device can a State defeat the effective enjoyment of a federal right. See American Railway Express Co. v. Levee, 263 U.S. 19, 44 S.Ct. 11, 68 L.Ed. 140; Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143. But on the admitted facts now before us there can be no doubt that the choice of Alabama as a forum was purely vexatious. On this record there is not the least shred of relevant connection between this litigation and Alabama.
^1 No suggestion of a policy inconsistent with that expressed by § 1404(a), as illumined by the Reviser's Note concerning it, can be derived from the failure of Congress to enact the Jennings Bill, H.R. 1639, 80th Cong., 1st Sess. That bill proposed to amend 'the Fed-
eral Employers' Liability Act by removing from section 6 (45 U.S.C. 56 (45 U.S.C.A. § 56)) the provision permitting actions to be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.' The bill proposed as well to amend 'the Judicial Code by adding a new paragraph to section 51 (28 U.S.C. 112) to provide the venue in any action brought against interstate common carriers by railroad for damages resulting from wrongful death or personal injuries.' H.R.Rep.No.613, 80th Cong., 1st Sess., at p. 2. In both actions under the Federal Employers' Liability Act and the other specified actions against railroads, the Jennings Bill would have permitted suit only in the district or county in which the plaintiff resided or the accident occurred. No doubt the abuses which are curable by discretionary dismissals under the doctrine of forum non conveniens or, as in this case, by means of an injunction, could be cured also in the manner of the Jennings Bill. But the difference between the two methods of attack is quite plain. The Jennings Bill represented a meat-ax approach and was opposed on precisely that ground by the minority in the House Committee on the Judiciary. The minority pointed out that the evil of 'trafficking in, and solicitation of, lawsuits' originated with our Kepner and Miles decisions. The minority's aim was to have lawsuits 'moved around for the convenience of witnesses and for other purposes in accordance with the provisions of the State laws' rather than be governed by the inflexible venue provisions of the Jennings Bill. Id., at Part 2, pp. 3-4. If a congressional policy can be derived from rejection of the Jennings Bill, it is a policy which coincides with that expressed in the Reviser's Note to § 1404(a), the policy, that is, which the Court disregards.
^2 To suggest that Congress, if it saw fit, could 'vest' in State courts the power which this Court now denies them is, of course, to misconceive our problem. The issue is not what Congress might grant to State judiciaries but whether it has deprived them of a power which inheres in them.
^3 To be sure, Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377, 49 S.Ct. 355, 73 L.Ed. 747, was not overruled, and a State court was presumably free to try to dismiss an action under the Federal Employers' Liability Act on the ground that it was brought in a forum non conveniens. This, however, was not a very likely occurrence in view of the language of the Kepner and Miles opinions, and so the plaintiff's choice of a forum was almost always certain to be respected in both federal and State courts.