payments. It would seem incongruous, at first glance, if the United States should have to pay in tort for hospital expenses it had already paid, for example. And whatever the legal theory behind a wrongful death action, the same considerations might apply to the Government's gratuity death payment to Arthur Brooks' survivors, although national service life insurance might be considered a separate transaction, unrelated to an action in tort or other benefits.

But the statutory scheme and the Veterans' Administration regulations may dictate a contrary result. The point was not argued in the case as it came to us from the Court of Appeals. The court below does not appear to have passed upon it; it was unnecessary, in the view they took of the case. We do not know from this record whether the Government objected to this portion of the District Court judgment—nor can we tell from this record whether the Court of Appeals should consider a general objection to the judgment sufficient to allow it to consider this problem. Finally, we are not sure how much deducting the District Judge did. It is obvious that we are in no position to pass upon the question of deducting other benefits in the case's present posture.

We conclude that the language, framework and legislative history of the Tort Claims Act require a holding that petitioners' actions were well founded. But we remand to the Court of Appeals for its consideration of the problem of reducing damages pro tanto, should it decide that such consideration is proper in view of the District Court judgment and the parties' allegations of error. Reversed and remanded.

MR. JUSTICE FRANKFURTER and MR. JUSTICE DOUGLAS dissent, substantially for the reasons set forth by Judge Dobie, below, 169 F. 2d 840.

Syllabus.

EX PARTE COLLETT.

MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF MANDAMUS AND PROHIBITION.

No. 206, Misc. Argued February 7, 1949-Decided May 31, 1949.

Under 28 U. S. C. § 1404 (a), incorporated in the revision of the Judicial Code effective September 1, 1948, the doctrine of forum non conveniens is made applicable to actions under the Federal Employers' Liability Act. Pp. 56-72.

1. This conclusion is required by the clear and unambiguous language of § 1404 (a), which applies generally to "any civil action." Pp. 58-59.

2. It involves no implied repeal of § 6 of the Federal Employers' Liability Act, since that deals with the places where actions may be brought originally, whereas 28 U. S. C. § 1404 (a) deals with the right to transfer an action properly brought. Pp. 59-61.

3. The legislative history of the revision of the Judicial Code requires the same conclusion. Pp. 61-71.

4. As thus construed, § 1404 (a) is applicable to actions instituted before its effective date but not brought to trial prior to its effective date. P. 71.

Motion denied.

Under 28 U. S. C. § 1404 (a), a Federal District Court in which an action under the Federal Employers' Liability Act had been brought transferred it to a District Court in another District, on the ground that this would serve the convenience of parties and witnesses and be in the interest of justice. Petitioner moved in this Court for leave to file a petition for writs of mandamus and prohibition. The case was assigned for hearing on the motion. 335 U. S. 897. Motion denied, p. 72.

Lloyd T. Bailey argued the cause for petitioner. With him on the brief was Theodore Granik.

Opinion of the Court.

337 U.S.

Robert P. Hobson argued the cause for the Honorable Fred L. Wham, United States Judge for the Eastern District of Illinois, respondent. With him on the brief was Ernest Woodward.

MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

In this case we must decide whether the venue provisions of the Judicial Code1 render applicable the doctrine of forum non conveniens to actions under the Federal Employers' Liability Act. Petitioner instituted such an action against the Louisville and Nashville Railroad in October, 1947, in the court below, the United States District Court for the Eastern District of Illinois. No trial was had before September 1, 1948, the effective date of the present Judicial Code. Thereafter the Railroad filed a motion to transfer the case to the District Court for the Eastern District of Kentucky.

The court below found that all 35 witnesses and the petitioner himself live in Irvine, Kentucky, which also was the scene of the accident; that Irvine is 420 miles, "approximately twenty-four hours. . . by public transportation," from East St. Louis, where the court below sits, but only 26 miles from Richmond and 48 from Lexington, in which two cities the District Court for the Eastern District of Kentucky sits. Furthermore, the court below determined that jury schedules at both Richmond and Lexington made early trial possible. Thus concluding that the transfer would serve the convenience of parties and witnesses, and would be in the interest of

1 Act of June 25, 1948, 62 Stat. 869: "An Act To revise, codify, and enact into law title 28 of the United States Code entitled 'Judicial Code and Judiciary.'"

235 Stat. 65, as amended by 36 Stat. 291, and 53 Stat. 1404, 45 U. S. C. §§ 51-59.

3 Act of June 25, 1948, 62 Stat. 869, 992, § 38.

55

55

Opinion of the Court.

justice, the District Court granted the Railroad's motion. Petitioner then filed directly in this Court a "Motion for leave to file petition for order to show cause why writs of mandamus [against the court below] and prohibition [against the Kentucky District Court] should not issue, and petition for same." Petitioner makes no allegation that the court below abused its discretion; his sole contention is that the order of transfer exceeded the District Court's authority. Since that issue seemed of importance in the administration of justice, we assigned the case for hearing on the motion. 335 U. S. 897 (1948).

Prior to the current revision of Title 28 of the United States Code, forum non conveniens was not available in Federal Employers' Liability Act suits. Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44 (1941); Miles v. Illinois Central R. Co., 315 U. S. 698 (1942); see Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 505 (1947). The new Code, however, provides that "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." This is 1404 (a). The reviser's notes, which accom

At least five district court decisions dealing with the relationship of § 1404 (a) to FELA suits have been reported. Four have held that the section is applicable. Hayes v. Chicago, R. I. & P. R. Co. (and seven other cases), 79 F. Supp. 821 (1948); White v. Thompson, 80 F. Supp. 411 (1948); Nunn v. Chicago, M., St. P. & P. R. Co., 80 F. Supp. 745 (1948); Scott v. New York Central R. Co., 81 F. Supp. 815 (1948); cf. Brainard v. Atchison, T. & S. F. R. Co., 81 F. Supp. 211 (1948); Perry v. Atchison, T. & S. F. R. Co., 82 F. Supp. 912 (1948) (in both, motion to transfer denied, in exercise of "discretionary powers"); Chaffin v. Chesapeake & O. R. Co., 80 F. Supp. 957 (1948); Richer v. Chicago, R. 1. & P. R. Co., 80 F. Supp. 971 (1948). One reported decision has held that the Code section is inapplicable to such suits. Pascarella v. New York Central R. Co., 81 F. Supp. 95 (1948).

Opinion of the Court.

337 U.S.

pany each section of the Code, here read as follows: "Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper. As an example of the need of such a provision, see Baltimore & Ohio R. Co. v. Kepner, 1941, 62 S. Ct. 6, 314 U. S. 44, 86 L. Ed. 28, which was prosecuted under the Federal Employer's [sic] Liability Act in New York, although the accident occurred and the employee resided in Ohio. The new subsection requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so." The precise issue before us is whether, despite these expressions, the law remains unchanged. Petitioner so contends.

6

First. The court below relied on the language of § 1404 (a), supra, which it regarded as "unambiguous, direct, clear." We agree. The reach of "any civil action" is unmistakable. The phrase is used without qualification, without hint that some should be excluded. From the statutory text alone, it is impossible to read the section as excising this case from "any civil action."

The only suggestion petitioner offers in this regard is that "any civil action" embraces only those actions for which special venue requirements are prescribed in §§ 1394-1403 of Revised Title 28, since these sections

5 H. R. Rep. No. 308, 80th Cong., 1st Sess. A 132 (1947); H. R. Rep. No. 2646, 79th Cong., 2d Sess. A127 (1946).

• The reviser's notes make clear that the phrase was substituted for "suit," formerly used in various venue statutes, in the light of Rule 2 of the Fed. Rules Civ. Proc.: "There shall be one form of action to be known as 'civil action'."

7Section 1394 deals with any civil action "by a national banking association to enjoin the Comptroller of the Currency"; § 1395, proceedings "for the recovery of a pecuniary fine" and "for the forfeiture of property" under varying circumstances; § 1396, "Any civil