For background, see my blogposts “Why The Chop?” 3/13/23, and “Why The Chop? – Part Deux,” 3/16/23.

Late last night, 4/11/23, I received the following unsigned text message: “Good evening. I am reaching out with respect to the Delgado case and Judge Halpern’s show cause order re:  6637 penalty. In response to your question, no warning re: imposition of the penalty was given by the court, or penalty sought by Chief Counsel.”

I expect my correspondent meant “6673 penalty.” Indeed, Judge Halpern’s OSC (to which a docket search shows Petitioners’ reply was filed yesterday, 4/11/23) refers specifically to Section 6673(a), the general frivolity delay-of-game penalty. I had thought that Rule 33(b) was implicated, but Judge Halpern did not refer to that Rule.

True, no warning is mandated either by statute or reg, but rarely has the chop been administered under either provision without at least an off-the-bench oral warning. Only in cases of well-documented egregious conduct can I recollect an OSC prelude to an immediate chop. I can’t find a more recent example from Judge Halpern than that set forth in my blogpost “A Further Cautionary Tale,” 4/28/14, nine years ago, when he invoked both Section 6673 and Rule 33(b). In that case, the documented misdoings of attorney Mac were well over the mark.