Plaintiffs then claim as each plaintiff's loss the amount determined by subtracting from the census-derived figure the amount actually earned by that plaintiff during the relevant time period. The loss calculation method proposed by plaintiffs is unexceptional and is approved for purposes of this case.
Plaintiffs claim that the relevant time period runs from when each plaintiff began work at the FBI until that plaintiff left or should have left that employment. The date on which plaintiffs assert that a duty to mitigate damages arose is April 4, 1978, the date on which plaintiffs were notified that they could seek alternative employment and still receive credit for their clerical experience in applying for future special agent vacancies. This date is almost one year after the termination of the clerk-to-agent program was announced. As such, it represents a reasonable compromise date, since it would be clearly unreasonable to expect plaintiffs to obtain alternative employment immediately after termination of the clerk-to-agent program. Defendants have not disputed the validity of this date, and the Court thus adopts it as a reasonable date after which any reduced pay suffered by remaining at the FBI will be deemed to be a result of the plaintiff's own choice to remain there. Thus, plaintiffs are entitled to basic damages in the amount of the difference between the amount they earned at the FBI between (a) the time they began and (b) the earlier of their actual departure dates or April 4, 1978 and the average amounts, that persons of their age, sex, race and education earned.
Plaintiffs also claim the right to compensation for their reduced earning capacity beyond this date as a result of their having worked at the FBI during the relevant time period. This argument must be rejected. These damages are too speculative to be awarded. Some plaintiffs may have actually been benefited by their FBI employment; others may have been harmed. The degree of this harm and the rate at which it will diminish in the future is extremely uncertain. As stated previously, it is impossible to calculate these damages with too much precision; a "rough justice" is all that can be expected. This is best achieved by giving the plaintiffs the aforementioned period of slightly less than one year in which to obtain other employment, and to terminate the period of damages after that date.
To this figure there should be added those expenses incurred by plaintiffs in traveling to their place of employment with the FBI. Defendant claims that these expenses are not recoverable because they are made in preparation for performance but such preparatory expenses are of course recoverable under the reliance approach, since they are clearly foreseeable costs of entering into the contract. See Restatement (Second) of Contracts, supra, § 363. However, costs of moving to new jobs obtained by plaintiffs after leaving the FBI are not so recoverable, since they would have in all probability been incurred even had there been no clerk-to-agent program. For example, if a plaintiff moved from Pittsburgh to Washington to join the clerk-to-agent program his expenses of so moving are a consequence of reliance on the program and properly recoverable. However, if the same plaintiff moved to New York after leaving the FBI the expenses of such a move would not be recoverable, since plaintiff would have had to move to New York to obtain that job even had the program never existed.
Plaintiffs also claim a right to recover for amounts spent on educational expenses incurred as a result of the program. However, it is completely speculative whether or not individual plaintiffs would have chosen to obtain a college degree, for example, had the clerk-to-agent program not existed. In addition, the plaintiffs who incurred educational expenses of course obtained the offsetting benefit of the value of the education received. The amount of any difference between what plaintiffs paid for these benefits and what they were worth to plaintiffs is speculative; such expenses may not be recovered here.
Finally, five plaintiffs claim that their spouses suffered unemployment or reduced wages as a result of their decision to join the clerk-to-agent program. Again, such damages are not recoverable here. It is impossible to tell which plaintiffs' spouses would have been unemployed had they taken employment with someone other than the FBI. In addition, there is no evidence that the defendants could have anticipated that such consequences were likely to flow from the program, and any damages from spousal unemployment would thus appear to be barred by the rule requiring that damages from a breach of contract be reasonably foreseeable. See Hadley v. Baxendale, 156 Eng. Rep. 145 (1854); J. Calamari & J. Perillo, supra, §§ 14-5-14-7.
Finally, defendant claims that a reduction in the damages awarded should be made to reflect the possibility that some of the plaintiffs might have been unemployed had the clerk-to-agent program not existed. However, this factor is more than compensated for by the fact that the Department of Commerce Current Population Reports, from which the plaintiffs have calculated their amounts for average wages of workers in the plaintiffs respective age, education, race and sex groups tend to understate income by approximately ten percent. See Supplemental Affidavit of Paul Garfield, Ph.D. Defendants have not contested this fact. This discount effect more than compensates for the possibility that some of the plaintiffs may have been unemployed in the absence of the program. Even if this were not true, the other items of plaintiff's damages which have been disallowed here as speculative would more than adequately compensate for this speculative possibility.
The Court thus concludes that plaintiffs are entitled to recover the amounts claimed under Phase I of their Theory B for lost wages, as well as any expenses of moving to their jobs at the FBI, less any tax savings enjoyed with respect to moving expenses.
Plaintiffs' remaining elements of damages are disallowed. The parties have represented that the amount are not in dispute.
Accordingly, plaintiffs shall, on or before February 22, 1982, submit a form of judgment with the relevant amounts to which each plaintiff is entitled, which order shall have been seen by defendants. Defendants may on or before February 26, 1982, file an objection to these amounts. Upon receipt of these papers, the Court will enter the appropriate summary judgment order.
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