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8 Catt. 4: In re Pupatella

2012 April 25
by CATTLEYA, J.

CATTLEYA, J., delivered the opinion of the Cart. JEREMY, C.J., delivered a dissenting opinion.

Pupatella is a Neapolitan pizzeria and friggitoria located in Arlington, VA. It is a brick-and-mortar restaurant. However, Pupatella started out as a pizza cart in the Ballston neighborhood. The issue before this Supreme Cart is whether the court has jurisdiction over a brick-and-mortar restaurant that was once a food cart.

The Judiciary Act of 2011 (Cartiorari Act) grants the Supreme Cart “exclusive jurisdiction of all food carts, trucks, and other transitory alimentary establishments within those portions of the District of Columbia or the part thereof retroceded to the Commonwealth of Virginia.”

Rule of Procedure 1-2 explains that the Cart’s jurisdiction “extends to all mobile gastronomic enterprises situated throughout those parts of (a) the County of Arlington, Virginia, (b) the District of Columbia, and (c) the City of Alexandria, Virginia, which are reasonably proximate to public transportation of a reasonably rapid and efficient character.”

On their face, these provisions do not provide a clear answer to the question before the court. No explicit temporal limitations are to be found in the words of our guiding legislation or rules. Neither does our case law provide a clear answer. Our first jurisdictional opinion, In re China Garden, 5 Catt. 1 (2012), involved a food cart that was currently in operation. We were not asked to determine whether we had jurisdiction over a defunct food cart that now operates as a brick-and-mortar restaurant. So does this Supreme Cart have jurisdiction over all food carts now operating in our region, or over any food cart that at some point operated in our region?

Pupatella

This Cart does not have jurisdiction over a brick-and-mortar restaurant that once operated as a food cart. This is an issue of timing. For this Cart to exercise judicial power over the case of a food cart, the case must not be moot. This means that the food cart in question must be in operation during all stages of the Cart’s review. If a food cart is not in operation when its case comes before the court, then there are no culinary offerings for this Cart to eat and judge.

But what if the brick-and-mortar restaurant serves the same culinary offerings as it did when it operated as a food cart? Would the Cart not then have something to eat and judge? The answer is that this would not change the answer. The former food cart, now brick-and-mortar restaurant could not be reviewed by this Cart.

Even assuming that Pupatella serves the same pizzas with the same ingredients and the same styles of preparation as it did when it was a food cart, the resulting slices would not necessarily be the same. For example, it is conceivable that one could get a warmer and gooey-er pizza slice if it arrived to one’s table at a brick-and-mortar restaurant a few seconds after coming out of a 1000-degree, wood-fired oven. If food prepared in the same truck can be different from day to day, see, e.g., In re Bada Bing, 5 Catt. 2 (2012), then surely food served off a food truck can be different from its reincarnation in a brick-and-mortar restaurant.

Pizza Classica

Today, we hold that the jurisdiction of this Supreme Cart does not extend to a brick-and-mortar restaurant that previously operated as a food cart. Pupatella is outside this court’s jurisdiction, and we may not review its dishes. However, we leave open the question of whether this court’s jurisdiction extends to a brick-and-mortar restaurant that concurrently operates a food cart. We note that there are several such businesses in the region. For example, Sâuçá has a food truck, District Taco has a food cart, District of Pi has a food truck, and Amorini Panini has a food truck. This is a question for another day.

DISMISSED.

JEREMY, C.J., dissenting.

Once again, as in China Garden, my sister’s cramped and arbitrary interpretation serves only to “remove[] from our jurisdiction an entire class of cases and controversies that now may find no tribunal in which to be heard.” Such interpretation can go by one name only: judicial activism. To say it smacks of Lochner is no exaggeration.

As my sister writes, the Judiciary Act of 2011 (Cartiorari Act) grants the Supreme Cart “exclusive jurisdiction of all food carts, trucks, and other transitory alimentary establishments within those portions of the District of Columbia or the part thereof retroceded to the Commonwealth of Virginia.” Rule of Procedure 1-2 explains that our jurisdiction “extends to all mobile gastronomic enterprises situated throughout those parts of (a) the County of Arlington, Virginia, (b) the District of Columbia, and (c) the City of Alexandria, Virginia, which are reasonably proximate to public transportation of a reasonably rapid and efficient character.”

My sister writes that “[t]oday, we hold that the jurisdiction of this Supreme Cart does not extend to a brick-and-mortar restuarant that previously operated as a food cart” (emphasis added). She specifically leaves open the question of whether the Cart’s jurisdiction “extends to a brick-and-mortar restaurant that concurrently operates a food cart” (emphasis in original). She states that this is “a question for another day.”

I am afraid my sister is badly mistaken. This is precisely the question before the Cart today. I would interpret the phrases “transitory alimentary establishment” and “mobile gastronomic enterprise” to include those establishments and enterprises which operate food carts, trucks, etc., even should they also purvey their offerings from immobile, brick-and-mortar structures.

Having so concluded, I feel I must conclude further that Pupatella—though it now operates only from an immobile, brick-and-mortar structure—comes within our jurisdiction. Because we would have had jurisdiction over its truck while it was still extant, it follows that we have continuing jurisdiction over the brick-and-mortar structure operated as part of the same “establishment” or “enterprise.”

My sister inserts some vague notion of “temporality” into the texts of the Cartiorari Act and Rule of Procedure 1-2. Perhaps my vision fails me, but I see no explicit phrase, either in the text of the Cartiorari Act or in that of Rule of Procedure 1-2, that would serve to limit the extent of our jurisdiction on the basis of time. It is a guiding principle of this Cart, as it is with the other federal courts, that, had Congress wished to so limit the extent of our jurisdiction, it would have done so explicitly. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Accordingly, I would hold that, because jurisdiction would clearly have been established had this case come before us at an earlier time, this Cart continues to have jurisdiction, irrespective of uncertain and supposedly implied notions of “temporality.” Instead of dismissing, I would thus proceed to judgment. Sadly, my sister’s decision for the Cart artificially precludes, at least for the time being, our further consideration of this case of significant importance. This is a sad day for Justice, indeed.

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