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14 Catt. 3: In re Döner Bistro

2012 November 28

CATTLEYA, J., delivered the opinion of the Cart. JEREMY, C.J., dissented.

Emboldened by the Chief Justice’s recent grant of cartiorari to an imaginary duck truck so plainly outside existence and this Cart’s jurisdiction, see In re Imaginary Duck Truck, 1 Jer. 2 (2012), I granted cartiorari to Döner Bistro, a brick and mortar restaurant in Adams Morgan. Today, the writ of cartiorari is dismissed as improvidently granted. I am not–and never can be–as crazy as the Chief Justice. Nor can I undermine the legitimacy of this fine tribunal, as I believe the Chief Justice has done. Although such a dismissal is customarily made without further explanation, I feel that one is necessary in this case.

I. Döner Bistro

During the autumn season, I had the pleasure of dining at Döner Bistro. Döner Bistro is now a brick and mortar, but it got its start by selling döner kebab from a van. Sitting at a long picnic table at its Adams Morgan location, I devoured two meals: first a döner and then a plate of currywurst. My law clerk, who is of German descent, has long been bemoaning the absence of döner and currywurst from the mobile food scene. They are, he says, the truest of street foods.

Döner Kebab

In Germany, thousands of food stands sell döner. Döner came to Germany by way of a Turkish immigrant who adapted a traditional meat-and-rice platter for German taste buds. The result was a toasted flatbread stuffed with spit-roasted meat, cabbage salad, tomatoes, cucumbers, onions, and yogurt sauce. And now döner frequently appears on various “world’s best street food” lists.


Germany’s currywurst is also a frequent mention on “world’s best street food” lists. See here and here. Currywurst is a sausage topped with ketchup and curry powder and served with either pommes (fries) or brötchen (bread roll). My youthful clerk tells me that currywurst can be very satisfying after an evening partaking of drink and dance; in his words, it is good “drunk food.” 

II. Street Food

Döner Bistro’s offerings—döner and currywurst—are considered street food around the world. But what does this status as street food mean to this Supreme Cart? I take this opportunity to clarify our court’s treatment of street food.

This Cart has defined “street food” as “the kind[] of food[] that can be cooked in front of you and [is] meant to be eaten with your hands, without forks, while standing up.” In re Eat Wonky, 2 Catt. 5 (2011). In other words, street food is (1) cooked or capable of being cooked in front of the customer, i.e., aboard the mobile gastronomic enterprise; (2) meant to be eaten with one’s hands, i.e., without forks or other cutlery; and (3) eaten or is capable of being eaten while standing up. In re Big Cheese, 6 Catt. 2 (2012). However, this test is “not intended to affirmatively define the entire class of ‘street food.’” In re Hot People Food, 6 Catt. 4 (2012). In fact, we recognize as street food those dishes that are traditionally seen as street food, whether or not they meet our three factors. For example, the half-smoke and crêpe, In re Street Vendor Near National Mall, 9 Catt. 5 (2012); In re Choupi, 12 Catt. 3 (2012), and now döner and currywurst.

If the analysis shows that a dish is street food, then what? If a dish constitutes street food, then we must affirm the dish unless we can prove that the dish is significantly flawed. If a dish is not street food, then there is no presumption in favor of the dish and the mobile gastronomic enterprise must prove that the dish belongs on the street. See Big Cheese, 6 Catt. 2.

Our Eat Wonky “street food” test, therefore, merely establishes where the burden of proof lies in a case. It is applied only after it is determined that a mobile gastronomic enterprise is within the Cart’s jurisdiction. The street food test has no effect on whether a mobile gastronomic enterprise is within our jurisdiction. Thus, even though Döner Bistro purveys food recognized as “street” by this court, that fact does not confer jurisdiction on the court.

III. Jurisdiction

To be reviewed by this court, Döner Bistro must be within our jurisdiction. Under the Judiciary Act of 2011 (Cartiorari Act), the Supreme Cart has “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 by Act of [the] Congress assembled in the year of our Lord 1847.” From this, our Rule of Procedure 1-2 provides that our jurisdiction “extend[s] 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.”

So, to be within our jurisdiction, three elements must be met. First, the establishment under consideration must be a “mobile gastronomic enterprise[].” Second, it must be located in Arlington, Alexandria, or the District of Columbia. Third, it must be reasonably proximate to public transportation. See In re China Garden, 5 Catt. 1 (2012).

Döner Bistro fails to meet the first element; it is not a mobile gastronomic enterprise. Döner Bistro is strikingly similar to the establishment that we were met with in In re Pupatella, 8 Catt. 4 (2012). Like Pupatella, Döner Bistro once operated as a mobile food vendor. Pupatella was a food cart before it became a brick and mortar, and Döner Bistro was a food van. In Pupatella, we unequivocally held that “[t]his Cart does not have jurisdiction over a brick-and-mortar restaurant that once operated as a food cart.” That ruling applies here. That Döner Bistro operated as a van instead of a cart is a distinction without a difference.

Because Döner Bistro is not currently a mobile gastronomic enterprise, it is outside the Cart’s jurisdiction and we may not review its offerings of döner and currywurst.

IV. Conclusion

The grant of cartiorari was improvidently granted on the issue of whether the Cart has jurisdiction over a brick and mortar restaurant that previously operated as a mobile food vendor. This issue has been previously brought to the court and a ruling was issued. The answer is no.

(By the way, Chief Justice, how do you like that show of “respect for the nobility of stare decisis”? See In re Amtrak Café Car, 14 Catt. 1 (2012).)


JEREMY, C.J., dissenting.

By the sharp point of my sister’s quill, I am called “crazy” and said to have “undermine[d] the legitimacy of this fine tribunal.” But certainly I am no crazier than one who would slam shut the gilded doors of justice, nor do I undermine the legitimacy of this fine tribunal nearly so much as she who would rely on cramped and self-serving interpretations of foundational texts.

My sister correctly states our jurisdictional test, but there ends our agreement on the matter at hand. She would find, as she did in Pupatella, that a mobile gastronomic enterprise necessarily loses its mobility when it ceases operation of its truck and finds refuge in the locational certainty of brick-and-mortardom. But, for those reasons already noted in my dissent in Pupatella, I would find this not to be the case. I would set aside Pupatella and proceed to judge Döner Bistro on the merits of its gastronomy.

However, even where I to agree with, or at least concede to, my sister’s flawed logic in Pupatella, I would part ways in the present case. In Pupatella, this Cart held that it lacked jurisdiction “over a brick-and-mortar restaurant that once operated as a food cart.” In re Pupatella, 8 Catt. 4 (2012) (emphasis added). My sister would hold here that that ruling must apply also to food vans, that “operat[ion] as a van instead of a cart is a distinction without a difference.” But that assumes too much. That much should be clear to any person with a head on her body.

And yet I am the “crazy” one.

(Finally, my sister, you ask how I like your “show of ‘respect for the nobility of stare decision,’” quoting my own sound words from Amtrak Café Car. You will note that I also wrote that “sometimes” it is “more important that the law be established than that it satisfy every neuron of your intellect.” I continued, writing that only where there is no “compelling reason” to abandon precedent has a judge “undermine[d] democracy and the general welfare.” In this case, as I have explained, there is every “compelling reason” to abandon the wholly unreasonable precedent of Pupatella. It pains me to think how very many cases can find no tribunal due to the base wantonness of your activism. Have I answered your question?)

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