with whom Justice Compton and Justice Thomas join, dissenting.
The records of this Court indicate that FELA plaintiffs have found a happy hunting ground in Portsmouth. Attorneys representing railroad employees claiming job-related injuries occurring all over the continental United States apparently think it worthwhile to bring actions against railroads in Portsmouth, or in neighboring Norfolk, rather than in the localities in which the accident occurred.* One may only speculate as to the reasons for this phenomenon.
The cases are numerous and constitute a substantial part of the local judicial workload. The amounts in controversy are large, generating frequent appeals. Our hospitality to this nationwide litigation imposes a significant burden upon Virginia taxpayers.
*159Against that background, the railroads contend that they are disadvantaged by being required to transport their witnesses and records across the country in order to stand trial on a battleground of their opponents’ choosing, where they perceive themselves to be regarded as “target” defendants. Under the statute complained of here, they may not invoke the protection of forum non conveniens and under the FELA they cannot remove the case to a federal court. The plaintiff has absolute control of the venue and suffers no compensating disadvantage. We have often said that the parties to a lawsuit are entitled to a level playing field, but the decision handed down today marks a significant departure from that just rule.
This state of affairs may lead to results as absurd as they are unfair. In a hypothetical case, a trainman suffers injury on a westbound train passing through Bristol, Virginia. If he seeks to recover for his injuries in Portsmouth, the defendant railroad may, for good cause shown, obtain a transfer of the case to Bristol, where the cause of action arose, pursuant to Code § 8.01-265. On the other hand, if the accident occurs a few seconds later, when the train has crossed into Bristol, Tennessee, the plaintiff may force the railroad to defend itself in Portsmouth, Virginia. Thus, the defendant might have a strong incentive to contend that the accident occurred in Virginia, and the plaintiff to contend that it occurred in Tennessee.
There is, in my view, no conceivable rational basis for the statute under consideration. It makes a distinction between causes of action arising within and without the state which arbitrarily discriminates against FELA defendants and serves no valid state interest.
It is unnecessary to look to foreign authority for the origins of forum non conveniens. That doctrine has been codified by statute in Virginia, in strong language. Code § 8.01-257, which the majority opinion fails to mention, provides, in pertinent part: “[Ejvery action shall be commenced and tried in a forum convenient to the parties and witnesses, where justice can be administered without prejudice or delay.” The non-dismissal clause under review here accords the benefit of that clear declaration of legislative policy to FELA plaintiffs, wherever their causes of action might arise, and accords it to defendants where the cause of action arises in Virginia, but denies it to FELA defendants where the cause of action arises outside the state.
*160The majority opinion labors diligently to suggest a rational basis which might justify this obvious discrimination. It suggests two possible justifications. The first suggested justification is that the state might have some concern that a plaintiff whose case is dismissed here might have nowhere else to go, “because of the bar of the statute of limitations or other reason.” There are several answers to that concern. Forum non conveniens is discretionary. The court need not dismiss the plaintiffs case unless the plaintiff actually has an available forum, convenient to both parties, in which his case may be tried. If the court is in doubt, it need not immediately dismiss the case, but may grant a stay until the availability of the more convenient forum can be tested. Finally, the majority’s concern about the statute of limitations is singularly unpersuasive. That situation would arise only where the plaintiff not only sought to disadvantage the defendant by bringing his action in an inconvenient forum, but compounded his unfair tactics by waiting until the latest possible time in which to do so.
The second “rational reason” given by the majority opinion to support the non-dismissal clause is that by adopting the long-arm statute, Virginia sought to extend its jurisdiction to the maximum limits permitted by the Due Process Clause, and that dismissals under forum non conveniens would contravene that policy. That reasoning is flawed in three respects. First, the General Assembly, by codifying forum non conveniens in the sweeping language of Code § 8.01-257, adopted that doctrine as legislative policy just as clearly as its extension of long-arm jurisdiction. The two policies coexist, and it is our duty to harmonize them, not to submerge one to serve the other. Second, forum non conveniens has no impact whatever on the court’s jurisdiction. The doctrine concedes that the court has jurisdiction, but justifies a refusal to exercise it where to do so would be unfair to the defendant or burdensome to the public. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-09 (1947). Finally, the extension of jurisdiction represented by the long-arm statutes is completely irrelevant to the present case. The defendant railroad does business in Virginia and has a statutory agent for the service of process. No long-arm proceedings are involved. We are discussing venue, not jurisdiction.
Because the discrimination and unfairness resulting from the non-dismissal clause of Code § 8.01-265 is obvious and egregious, and because I can perceive no rational justification for it, I would *161hold it unconstitutional as applied, in violation of the Equal Protection Clause, U.S. Const. amend XIV, § 1.
A fair example of such a case, having no relationship to Virginia, was Stephen R. Thomas v. Seaboard System Railroad, Inc., Record No. 870300, in which we denied an appeal in January 1988. There, the plaintiff was a brakeman riding in a caboose travelling from Danville, Illinois to Evansville, Indiana. Alleging that he had slipped on a wet floor in the caboose, he brought suit against the railroad in Portsmouth, Virginia, claiming $3,000,000.00 in damages.
The record in the present case indicates that of 201 FELA cases filed in Portsmouth during the years 1981-1986, 141 cases alleged accidents which occurred outside Virginia.