LOUIS NEWELL [Note 1] vs. DEPARTMENT OF MENTAL RETARDATION.

MARSHALL, C.J. In Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 600 (2001) (Buckhannon), the United States Supreme Court ruled that "a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct" is not a "prevailing party" for purposes of awarding attorney's fees under Federal fee-shifting statutes allowing such awards. The Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988 (2000), is one such statute. [Note 2] We transferred this case here on our own motion to consider whether counsel who represented the plaintiff, a mentally retarded and physically vulnerable man, may recover attorney's fees under 42 U.S.C. § 1988. The underlying litigation has been pursued in the Superior Court for more than one decade, and was resolved only when essential services for the plaintiff were finally provided by the Department of Mental Retardation (department). A judge in the Superior Court concluded that the litigation spurred the department to provide the services long denied to the plaintiff: she noted that the plaintiff would "never" have been provided the services "had it not been for this litigation." The issue of the recovery of attorney's fees here is, however, one of Federal law. On a careful review of the voluminous record and with due regard for the legal services provided by counsel to their client to secure basic necessities for him, we conclude that under the command of Buckhannon and its progeny, attorney's fees may not be awarded in this case. We affirm the judge's order vacating her earlier award of attorney's fees.

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Also at issue is the department's appeal challenging a ruling that statements made by the judge during a hearing on the plaintiff's motion for injunctive relief constituted an order enforceable by contempt proceedings. [Note 3] We reverse the judge's order holding the department in contempt and awarding damages to the plaintiff.

1. Background. We summarize the judge's findings of fact, and describe the lengthy procedural history of this case. See Palmetto Props., Inc. v. County of DuPage, 375 F.3d 542, 543 (7th Cir. 2004), quoting McGrath v. Toys "R" Us, Inc., 356 F.3d 246, 253 (2d Cir. 2004) (to determine whether award of attorney's fees is appropriate under Buckhannon, "a meticulous analysis of the particular judgments and orders entered in a case is necessary").

The plaintiff is a sixty-six year old severely mentally retarded man with no family. He suffers from Fahr's Disease, a degenerative neurological disorder that causes him to have difficulty walking and maintaining his balance. He has been in the care of the Commonwealth since early childhood. In 1995, while in the department's custody, [Note 4] the plaintiff suffered serious injuries, including a head injury, resulting from a series of falls and an assault he suffered while living in a department-sponsored group home, Charles River Association for Retarded Citizens. He was hospitalized at Massachusetts General Hospital (MGH) in June, 1995, and remained there for some six months. Eventually the plaintiff's guardian was required to move him from MGH. Believing that placement in the department-sponsored group home would not be safe for the plaintiff, the guardian transferred the plaintiff to a nursing home over which the department had no control.

In November, 1995, while he was still a patient at MGH, the

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plaintiff (through his guardian) commenced this action against the department. [Note 5] The plaintiff alleged that injuries suffered in 1994 and 1995 were caused by the department's failure to provide him with an individual service plan (ISP) [Note 6] requiring one-to-one care and supervision. [Note 7] The plaintiff asserted various State claims and claims under 42 U.S.C. § 1983, and sought compensatory damages. He also sought injunctive relief ordering the department to place him in an appropriate facility that could provide one-to-one care and supervision.

A request for a preliminary injunction, filed when the action was commenced, was denied in March, 1996, after the department agreed to amend the plaintiff's ISP. [Note 8] The case eventually

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went to trial in December, 1999. A directed verdict was entered in favor of the department on all claims, except one claim for negligence. [Note 9] The jury returned a verdict in favor of the plaintiff on that count, and awarded damages in the amount of $482,600 for the injuries he had sustained. On August 29, 2000, the judge allowed the department's motion for judgment notwithstanding the verdict, concluding that the department was immune from liability under G. L. c. 258, § 10 (j), and that the plaintiff failed to produce sufficient evidence to allow the jury to draw a reasonable inference that the department had been negligent. The plaintiff does not raise any issues related to that order.

At the conclusion of the trial but before the judge's ruling on the department's motion for judgment notwithstanding the verdict, the plaintiff renewed his request for injunctive relief. See note 8, supra. He again sought an order that the department amend the plaintiff's ISP [Note 10] to require the provision of one-to-

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one care and supervision, and added a claim that the department had violated his rights under a consent decree entered in a class action, Ricci v. Okin, 823 F. Supp. 984 (D. Mass. 1993) (Ricci). [Note 11] It is the 2000 injunctive relief sought by the plaintiff that forms in large part the basis of his Buckhannon claim. For purposes of resolving those claims, the critical events, which we describe in greater detail below, are as follows: (1) on February 10, February 17, and March 29, 2000, the judge, who had presided at the trial, held hearings on the plaintiff's renewed motion for injunctive relief, and on March 29, she allegedly issued an oral order that is the subject of the contempt claim; (2) on May 31, 2000, the plaintiff filed a complaint for contempt for noncompliance with the judge's March 29, 2000, order; (3) by order dated December 1, 2000, and entered on January 2, 2001, the judge dismissed the plaintiff's request for injunctive relief as moot, awarded attorney's fees to the plaintiff, and held the department in contempt for failure to comply with one aspect of her March order; (4) on January 22 and 24, 2001, respectively, the department filed a notice of appeal, and the plaintiff cross-appealed [Note 12]; (5) on December 31, 2001, the department filed a motion for reconsideration concerning the award of attorney's fees in light of the Supreme Court's decision in Buckhannon, issued after the judge's order on attorney's fees; (6) on March 18, 2002, the judge vacated her award of attorney's fees; (7) on April 2, 2002, the plaintiff filed an amended notice of appeal regarding the vacation of the attorney's fee award.

The focal point of our inquiry is the March 29, 2000, hearing for purposes of both our Buckhannon analysis and the contempt

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ruling. To place it in context, we review in greater detail the posttrial stages in the litigation, preceding and following that hearing.

As noted earlier, in December, 1999, following the trial, the plaintiff renewed his request for injunctive relief that the department complete a new ISP to require "in particular" some form of one-to-one care and supervision to assure the plaintiff's safety and allow him to live "in the most normal, least restrictive manner possible." [Note 13], [Note 14] At that time, the plaintiff continued to reside in the nursing home where his guardian had placed him after his discharge from MGH. He claimed in his renewed request that the services were required in part because he is a member of the class certified in Ricci. Three hearings on the plaintiff's motion then followed: February 10 and 17, and March 29, 2000. At the February 10 hearing, the department did not contest that an amended ISP was required, but informed the judge that an amended ISP had not been prepared. The judge "ordered" that the department "prepare and serve on the court and plaintiff's counsel the ISP . . . by the end of business on [February] 15th." [Note 15] At the February 17 hearing, the judge "order[ed]" the department to prepare a "more complete ISP" within three weeks because she was not satisfied with the draft ISP presented to her. Between that date and the next hearing, the department focused on revising and finalizing a new ISP for the plaintiff.

We turn now to the hearing on March 29. By that time the

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judge had rejected the initial revised ISP presented to her in February, had granted a three-week extension sought by the department, was aware that the department had met with the plaintiff's guardian, and had every expectation that the department would comply with her orders. The judge reviewed a copy of the new ISP prepared by the department, which the plaintiff's guardian had received but had not signed. The new ISP stated that "by April 30th" the plaintiff would have one-to-one care and supervision "for up to twenty-five hours each week." [Note 16] The department's ISP service coordinator [Note 17] testified that funding for the plaintiff's one-to-one care had been "approved," and that although she did not know "how the funding works," she had set an April 30 deadline. These represented substantial and important changes to the services the department would provide to the plaintiff. Some ambiguities in the revised ISP needed to be resolved, however. Specifically, the ISP did not provide for a private room for the plaintiff, and counsel expressed concern that the one-to-one care specified in the new ISP was only "up to" twenty-five hours per week when he was not participating in community activities and would therefore force the plaintiff to choose between community activities and one-to-one care. The judge then engaged in a colloquy with the ISP service coordinator who agreed that the plaintiff would receive "approximately" twenty-five hours of one-to-one care per week, and not just "up to" that amount. The judge "asked" the department to amend the existing ISP to include that relief:

"I am going to ask that [the department] amend this ISP to include . . . that, at the present time, [the plaintiff] has a private room, that he will have his private room, at [the department's] expense, until an appropriate roommate is determined. . . . . [Note 18] And I am also asking that [the department] amend the [ISP] . . . to just add a sentence

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. . . that [the plaintiff] will have approximately twenty-five hours a week of one-to-one [care] . . . ."

When the department objected on the grounds that the judge had no authority to determine the content of an ISP, citing Matter of McKnight, 406 Mass. 787 (1990), the judge responded that she was "only asking [the department] . . . to put in the ISP, what [the department] has already agreed to." She then specifically inquired whether the department had agreed to provide one-to-one care for approximately twenty-five hours per week, to which counsel for the department responded: "Yes. The service coordinator has agreed to that." Following this exchange the judge then inquired of counsel whether he had any other concerns not addressed in the ISP, to which counsel responded, "No."

As to injunctive relief, because the department had agreed to provide one-to-one care and a private room by April 30, 2000, the judge inquired of plaintiff's counsel that "with the current ISP, you really don't need me to do anything." He responded that "as the result of litigation" counsel had "gotten for [the plaintiff] what we want." He did request that the judge make findings of fact that the plaintiff is a member of the Ricci class, see note 11, supra, and that the department "as a matter of law, [was] required to provide [the plaintiff] services in accordance with the ISP and in accordance with the Ricci-related [regulations]." The judge did not issue a written order following the March 29 hearing.

By April 30, 2000, the one-to-one services for the plaintiff had not been provided, nor apparently had he been moved to a private room in the nursing home. See note 19, infra. On May 31, 2000, the plaintiff filed a complaint for contempt, claiming that the department had failed to comply with the judge's March 29 order. The docket does not reflect any opposition from the department and we have been provided with none. On June 15, 2000, the judge held a hearing on the complaint for contempt, by which time the department had at last amended the plaintiff's

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ISP to provide for one-to-one care and a private room, the plaintiff had been moved to a private room, and while one-to-one care had not actually commenced, it "[had] very recently been arranged."

At the June hearing, the judge discussed with the parties a date for scheduling a trial on the plaintiff's complaint for contempt. She requested that plaintiff's counsel inform her whether the trial would consist solely of the claim for damages, in light of the fact that the department was, in the words of the plaintiff's counsel, "[c]lose to being" in compliance with the judge's March 29 order, and likely would be fully in compliance by the time of trial. [Note 19]

On September 6 and 8, 2000, the judge held hearings limited to the issue of contempt damages. [Note 20] The department claimed that it was not in contempt of any "order." The department's ISP service coordinator for the plaintiff testified. [Note 21] The judge said she would order a transcript of the March 29 hearing in time for the September 8 hearing. The judge received only three

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pages of the March 29 transcript in time for the September 8 hearing, [Note 22] at which the ISP service coordinator again testified. She confirmed that she was the author of an electronic mail message sent to an attorney in the department after the March 29 hearing, informing the attorney that "the deadline for providing one-to-one services for [the plaintiff was] April 30."

On December 1, 2000, the judge entered a written order on the plaintiff's motion for injunctive relief and his complaint for contempt. She dismissed the plaintiff's request for injunctive relief as moot. She awarded the plaintiff $215,965.80 in attorney's fees and costs pursuant to 42 U.S.C. § 1988. [Note 23], [Note 24] She held the department in contempt, and awarded damages to the plaintiff in the amount of $10,837.68. [Note 25]

As to the request for attorney's fees under 42 U.S.C. § 1988,

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the judge concluded that the plaintiff was a "prevailing party" entitled to fees based on the "catalyst theory" because "the plaintiff vindicated his rights without obtaining court-ordered relief" and "the change in the legal relationship between [the department and the plaintiff] was the product of pressures exerted by the present lawsuit." See Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978) ("when plaintiff's lawsuit acts as a 'catalyst' in prompting defendants to take action to meet plaintiff's claims, attorney's fees are justified despite the lack of judicial involvement in the result"). The department appealed.

On May 29, 2001, the Supreme Court decided Buckhannon. On December 31, 2001, the department moved for reconsideration of the award of attorney's fees to the plaintiff, relying on the holding in that case. After initially declining to rule on the motion because the parties had filed notices of appeal, [Note 26] on March 18, 2002, the judge vacated her award of attorney's fees stating: "Based on the clear language of the [Buckhannon] decision, the legal basis for an award of attorney's fees no longer exists." The plaintiff amended his notice of appeal to include an appeal from this order.

2. Attorney's fees. We consider first the plaintiff's appeal from the judge's order vacating the award of attorney's fees and costs. In Buckhannon, the United States Supreme Court held that for a party to be considered a "prevailing party" under Federal fee-shifting statutes there must be a "material alteration of the legal relationship of the parties," id. at 604, quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989), and there must be a "judicial imprimatur

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on the change," Buckhannon, supra at 605. The Court rejected the "catalyst theory" then used by most Circuit Courts of the United States Court of Appeals. Id. See, e.g., Stanton v. Southern Berkshire Regional Sch. Dist., 197 F.3d 574, 577 & n.2 (1st Cir. 1999); Payne v. Board of Educ. of Cleveland City Schs., 88 F.3d 392, 397- 398 (6th Cir. 1996).

The plaintiff now insists that, even under Buckhannon, he is a "prevailing party." He focuses on the "judicial imprimatur" aspect of the Buckhannon ruling and points to (1) specific statements made by the judge during the February 10 and 17 and March 29, 2000, hearings on his posttrial motion for injunctive relief, and (2) the judge's finding that he is a class member under Ricci. See note 11, supra. [Note 27]

We review the judge's decision that the plaintiff is not a "prevailing party" de novo. See Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 21 (1st Cir. 2005). Accord Roberson v. Giuliani, 346 F.3d 75, 78 (2d Cir. 2003); Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002). Contrast New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 30 (1st Cir. 2002) (reviewing

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denial of attorney's fees for abuse of discretion where judge construed his own oral order). For the reasons we now explain, we affirm the judge's decision to vacate the award of attorney's fees.

We consider first the "judicial imprimatur" requirement of Buckhannon. The Supreme Court stated that a "defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur." Buckhannon, supra at 605. The Court then noted that it had "only awarded attorney's fees where the plaintiff has received a judgment on the merits . . . or obtained a court-ordered consent decree." Id., and cases cited. It further noted that attorney's fees had previously not been awarded by the Court where the plaintiff had "secured the reversal of a directed verdict . . . or acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by 'judicial relief' " (citations omitted). Id. at 605-606. In the wake of Buckhannon, there has been some disagreement among Circuit Courts of the United States Court of Appeals whether a judgment on the merits and a court-ordered consent decree are the only forms of relief that meet the "judicial imprimatur" requirement of Buckhannon, or whether these are merely examples of the types of relief that can confer prevailing party status. See, e.g., Smith v. Fitchburg Pub. Schs., supra at 23 (noting disagreement between Eighth Circuit's narrow reading and more expansive reading of Second, Fourth, and Seventh Circuits). Whatever the ultimate resolution of that question, no court has concluded that oral statements by a judge, sometimes couched in hortatory rather than directive terms, and not reduced to writing, are sufficient to satisfy the requirement of a "judicial imprimatur." [Note 28] To the extent a claim similar to the one the plaintiff makes here has been asserted, it has been

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rejected. See, e.g., New England Regional Council of Carpenters v. Kinton, supra (judge's statements in "extended colloquy" with defendant were not "functional equivalent of a judicial order" where judge entered "no explicit order compelling, or even leading to" change in defendant's behavior).

Buckhannon does not preclude an award of attorney's fees on the basis of settlement agreements that are incorporated into a consent decree. See, e.g., Carbonell v. Immigration & Naturalization Serv., 429 F.3d 894, 901 (9th Cir. 2005) ("when a court incorporates the terms of a voluntary agreement into an order, that order is stamped with sufficient 'judicial imprimatur' for the litigant to qualify as a prevailing party"); Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159, 165 (3d Cir. 2002) (order incorporating terms of settlement reached during preliminary injunction hearing is "proper vehicle for rendering one side a 'prevailing party' "). See also Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1025-1026 (Fed. Cir. 2005) (same); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478-479 (7th Cir. 2003) (same); Roberson v. Giuliani, 346 F.3d 75, 81-82 (2d Cir. 2003) (same); American Disability Ass'n v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir. 2002) (same); Smyth v. Rivero, 282 F.3d 268, 280-282 (4th Cir.), cert. denied, 537 U.S. 825 (2002) (same).

There was no consent decree here. The judge resolved a dispute between the plaintiff and the department by cajoling (and sometimes ordering) the department to reach agreement with the plaintiff about the terms of the plaintiff's ISP and the services the plaintiff should and would receive. It is clear from our careful review of the February 10 and 17 hearing transcripts that the judge ordered the department to produce a new ISP for the plaintiff, but that there was no order from the judge with respect to the specific content of the ISP. [Note 29] That was the focus of the March 29 hearing. By March 29, the department had agreed in substantial measure to provide the plaintiff with a private room, had approved funding for up to twenty-five hours

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of one-to-one care and supervision each week, and had incorporated the provision of one-to-one care into the plaintiff's ISP. Although the department challenged the judge's authority to order the department to provide specific services and include them in the plaintiff's ISP, by then the department's ISP service coordinator and other department officials had already agreed to the relief the plaintiff sought. The judge, therefore, saw no need to grant injunctive relief to the plaintiff. Cf. Toms v. Taft, 338 F.3d 519, 528-529 (6th Cir. 2003) (although judge was involved in settlement conference, resulting settlement did not bear necessary judicial imprimatur where judge did not issue any order altering defendant's conduct and request for injunctive relief was rendered moot); T.D. v. LaGrange Sch. Dist. No. 102, supra at 478-479 (involvement in settlement negotiations, including conducting settlement conference in chambers and making certain settlement suggestions, not enough for judicial imprimatur). Contrast Palmetto Props., Inc. v. County of DuPage, 375 F.3d 542, 549-551 (7th Cir. 2004) (upholding award of attorney's fees where court made substantive ruling on motion for summary judgment that ordinance was unconstitutional and county voluntarily "repealed the ordinance only after that determination had been made and presumably because of it" [emphasis in original]).

This litigation was the catalyst for the department amending the plaintiff's ISP in the wake of the serious injuries he suffered in the department-sponsored group home, and for providing services to the plaintiff, in particular, the one-to-one services that the plaintiff needed. The judge's role in these hearings resulted in the department's amending the plaintiff's ISP to provide one-to-one care and a private room. The ISP was finally drafted to reflect those terms, but no settlement agreement was drafted or executed, and no order incorporating any such terms was entered. Cf. John T. v. Delaware County Intermediate Unit, 318 F.3d 545, 558 (3d Cir. 2003) (settlement can confer prevailing party status where it is incorporated into court order and where it "[1] contain[s] mandatory language, [2] [is] entitled 'Order,' [3] [bears] the signature of the . . . judge, not the parties'

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counsel, and [4] provide[s] for judicial enforcement"). [Note 30] For all of these reasons we conclude that the requisite "judicial imprimatur" is not present in this case.

Even if the judge's statements at the February and March hearings could be construed to satisfy Buckhannon's judicial imprimatur requirement, it is doubtful that there was a "material alteration of the legal relationship," also required by Buckhannon, supra at 604. See Carbonell v. Immigration and Naturalization Serv., 429 F.3d 894, 900 (9th Cir. 2005), quoting Richard S. v. Department of Developmental Servs. of Cal., 317 F.3d 1080, 1087 (9th Cir. 2003) (stipulation for stay of deportation materially altered legal relationship of parties "because the defendants were required to do something directly benefitting the plaintiff[] that they otherwise would not have had to do"). From the commencement of this litigation, the department has acknowledged that it has a statutory obligation to provide appropriate care for the plaintiff, and that the care must be reflected in an ISP, see notes 4 and 6, supra. Contrast T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 480 (7th Cir. 2003) (order that school district conduct case-study evaluation to determine plaintiff's eligibility for special education services, which resulted in determination that plaintiff was eligible for such benefits, materially altered legal relationship of parties because school district had not acknowledged plaintiff's eligibility for such services prior to issuance of order). Although the continuing failure of the department to provide appropriate care in the wake of the plaintiff's serious injuries was at the heart of the plaintiff's repeated efforts to obtain injunctive relief, we find nothing in the record to the effect that the department ever

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refused categorically to provide these services. Foot dragging by an agency, however inexcusable, is not refusal.

There is no claim that Buckhannon does not apply to this case; the plaintiff concedes the point. [Note 31] We recognize that, throughout the litigation, counsel for the plaintiff were proceeding in good faith under then-existing law, which the judge correctly concluded permitted an award of attorney's fees based on the "catalyst theory." See, e.g., Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978). See also Buckhannon, supra at 626 n.4 (Ginsburg, J., dissenting) (collecting cases). In the future, counsel who undertake the representation of clients bringing claims under Federal statutes allowing fee shifting will be forewarned that in order to recover attorney's fees, any beneficial arrangements they secure for their clients must be reduced to a written agreement endorsed by a judge. The record in this case is replete with examples of the department and its counsel doing little, if anything, to provide in a timely manner the services to which the department ultimately agreed. [Note 32] While we are not willing to conclude that the department was "being willfully obstructionist," Smith v. Fitchburg Pub. Schs., 401 F.3d 16, 27 (1st Cir. 2005), the time and resources expended by plaintiff's counsel and the judge in obtaining an agreement by the department to provide essential services was greater than necessary.

We now address the plaintiff's claim that the judge's ruling that he is a Ricci class member is a sufficient basis under Buckhannon to confer "prevailing party" status on him. [Note 33] A finding of fact, unaccompanied by a conclusion of law, will usually not

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work a material alteration of the legal relationship of the parties. Here, the finding by the judge that the plaintiff is a Ricci class member may have clarified the legal relationship between the plaintiff and the department; it did not change the relationship, which had been determined years earlier in the Ricci litigation itself. [Note 34] See note 11, supra. See also Buckhannon, supra at 613-615 (Scalia, J., concurring) ("prevailing party" status requires "judicial finding" of "the merits of the plaintiff's case" or "of liability"). [Note 35] The plaintiff either is or is not a Ricci

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class member; there is no judicial imprimatur that changed the legal relationship of the parties.

3. Contempt. On March 29, 2000, the judge held a hearing on the plaintiff's motion for injunctive relief to obtain certain services from the department. On appeal, the department argues that the judge abused her discretion in later finding the department in contempt of an order the judge concluded she had issued orally at that hearing, namely, to provide one-to-one care and a private room to the plaintiff by April 30, 2000. There is no dispute that the plaintiff was not in a private room and was not receiving one-to-one services by April 30. But the hearing at which the judge ostensibly issued the order in fact contains no order on the subject. The judge's conclusion that she had issued such an order, a conclusion she reached some six months later without the benefit of the transcript of the March 29 hearing, is clearly erroneous in light of the transcript that is now before us. As a result, the judge's finding that the department was in contempt must be reversed.

To hold a party in contempt, "there must be a clear and unequivocal command and an equally clear and undoubted disobedience." Nickerson v. Dowd, 342 Mass. 462, 464 (1961). Oral orders may, of course, support a contempt finding. Cf. Dominick v. Dominick, 18 Mass. App. Ct. 85, 88-89 (1984) (oral agreement read into record binding on parties). But whether in written or oral form, we determine whether a party is in contempt by looking to the precise words of the order itself. Where the order is oral, we look to the words of the transcript.

In this case, the plaintiff's complaint for contempt alleged that the department had failed to comply with two orders that he claimed the judge had issued orally on March 29: (1) that the department make specific changes in the wording of the plaintiff's ISP, and (2) that certain components of that revised ISP (placement of the plaintiff in a private room and the provision of one-to-one services for approximately twenty-five hours each week) be implemented by April 30, 2000. In her December 1, 2000, memorandum and order on contempt, the judge found that, although she had ordered on March 29 that changes

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be made in the ISP document, she had not set any deadline for the making of those changes. She therefore concluded that the department could not be held in contempt on that ground. She found contempt solely on the second ground, concluding that on March 29 she had issued an oral order that services be in place by April 30 and that the department had failed to provide the services by that date. The issue, then, is not whether the judge issued some form of "order" at the March 29 hearing, but whether any such order included a "clear and unequivocal command" setting an April 30 deadline for the implementation of services.

The transcript of the March 29 hearing, which (as we have noted) was not available to the judge before she issued her ruling on contempt, contains nothing resembling an order that the department implement specific services by April 30. That date was contained in the ISP prepared by the department; the transcript reflects only the judge's inquiries as to the funding status that would make April 30 a feasible date for implementation. The department's answer to the judge was that while the ISP service coordinator had put the April 30 date in the ISP and understood that funding had been approved, the service coordinator did not know enough about the details of the funding mechanism to say for certain whether the April 30 date would in fact be met. See note 21, supra. Beyond this colloquy between the judge and the ISP service coordinator, the subject of the April 30 date, and the subject of the funding that would make the April 30 date achievable, did not come up again at any time throughout the remainder of the March 29 hearing. Instead, the judge turned her attention to resolving the two components of the ISP with which plaintiff's counsel remained dissatisfied: the placement of the plaintiff in a private room, and the provision of one-to-one services. After a colloquy between the judge and the department on the one hand, and the judge and the plaintiff on the other, the department confirmed that the service coordinator had agreed to amend the ISP to provide those services, the plaintiff said that this was satisfactory, and the judge expressed the view that the parties had now "dealt with the ISP."

The judge next addressed how the plaintiff's pending motion

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for injunctive relief should be resolved, observing that "with the current ISP, you [the plaintiff] really don't need me to do anything." Plaintiff's counsel agreed, but asked that the judge make certain findings about the plaintiff's entitlement to the rights of a Ricci class member and the corresponding right to services under his ISP and the regulations. The judge responded by asking plaintiff's counsel to submit to her proposed findings of fact. Plaintiff's counsel then requested that his motion for injunctive relief be denied as "moot," as opposed to simply being denied. The judge agreed to do so, clarifying that the denial of the plaintiff's motion for injunctive relief as moot was without prejudice to his request for attorney's fees.

From this review of the transcript of the March 29 hearing, it does not appear that the judge ever ordered anything. She sidestepped the department's legal objections to her authority to issue an order modifying the ISP by indicating that she was merely "asking" the department to do what the department had, on its own, already "agreed to." To the extent there was any ambiguity in such terminology, the ultimate resolution of the hearing was that the plaintiff's request for an injunction was denied as moot. What had rendered the motion moot was the department's submission of an ISP and an agreement to make two modifications to the wording of that ISP. At most, the judge had exerted pressure on the department to prevent it from backing off its prior agreement with respect to those two modifications.

Even if one were to interpret this transcript as ordering the department to make the two amendments to the ISP (a point we need not decide, as the department was not found in contempt of that aspect of the ostensible "order"), [Note 36] the transcript contains no order that particular services be implemented by the April 30 date. As noted earlier, the transcript reflects only the judge's

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inquiries as to the funding status that would make that date feasible. In short, the plaintiff never sought, and the judge never issued, any order that the provisions in the ISP (either the original provisions or the amended provisions) be implemented by any particular date.

The burden of proving contempt is, of course, on the plaintiff. United States Time Corp. v. G.E.M. of Boston, Inc., 345 Mass. 279, 282 (1963). In the case of a disputed oral order, this makes it incumbent on the plaintiff to obtain the transcript and prove the contents of the order. Here, the judge herself recognized that she needed the transcript to determine precisely what she had and had not ordered some six months earlier: during the contempt hearing, she ordered the court reporter to prepare a transcript of the March 29 hearing for that purpose. The department cannot be penalized with contempt when it was a court reporter who flouted the judge's order for an immediate transcript. What is clear from the contempt hearing is that the department did not understand that the judge had imposed an obligation on it to provide one-to-one services and a private room for the plaintiff by April 30, 2000. [Note 37]

That the department is not in contempt does not suggest that it is blameless in this affair. To the contrary, the department was under a legal obligation, even without a court order, to make good faith efforts to achieve the objectives set forth in its own

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ISP, and it failed to do so. And, after the department provided the ISP containing the April 30 date to the plaintiff's counsel, counsel relied on that date in effectively withdrawing his request for injunctive relief. The department's failure to provide services by the date given to counsel in the ISP and at the hearing is in essence a breach of an agreement with the plaintiff. Finally, having made representations to the judge to the effect that, if funding were in place, the services would be provided by April 30, the department failed to honor that representation. These are serious forms of misconduct, but in the absence of an express court order, this misconduct cannot be elevated to a contempt of court. We therefore reverse that portion of the judge's order holding the department in contempt and awarding damages to the plaintiff.

So ordered.