Full opinion text
MEMORANDUM AND ORDER MORAN, District Judge. Several issues are before us. We evaluate, in order, plaintiff’s motion to strike the special master’s report and the proper increments of monthly price increases. We inquire of the special master to clarify his conclusions pertaining to the pricing period issue, and we decide the sale/exchange and V-factor/stipulation issues. We reaffirm our May 15, 1986 ruling as to the appropriate computation methodology and, finally, we rule on the various statutes of limitation controversies and specify further proceedings consistent with this opinion. Before discussing each issue, however, we set out the procedural history by way of introduction. INTRODUCTION Plaintiff Martin Oil Service, Inc. (“Martin Oil” or “Martin”) brought suit in this court on April 2, 1981, alleging that defendants Koch Refining Co. and Koch Industries, Inc. (collectively “Koch”) had sold gasoline to it at prices in excess of the maximum allowable under the mandatory petroleum allocation and price regulations, 10 C.F.R. §§ 211 and 212, promulgated pursuant to the Emergency Petroleum Allocation Act, 15 U.S.C. § 751 et seq. Our earlier rulings decided issues relating both to the substance of this allegation as well as to the procedural issues which have arisen during the course of the litigation. On October 18, 1982, we granted two of plaintiff’s motions. First we struck two of Koch’s affirmative defenses and, second, we issued a protective order foreclosing discovery by Koch to prove Martin recovered the alleged overcharges in the prices charged to customers. Martin Oil Service, Inc. v. Koch Refining Co. and Koch Industries, Inc., No. 81 C 1844, slip op. (N.D.Ill. Oct. 18, 1982). We reviewed the procedural and substantive legality of the “deemed recovery rule” in our memorandum and order of February 1, 1984. That decision denied defendants’ motion for partial summary judgment on plaintiff’s fourth cause of action (alleging that defendants increased their prices beyond the level allowed under the relevant regulations by misapplying the Federal Energy Agency’s (“FEA”) deemed recovery rule), because the rule was both procedurally and substantively valid. Martin Oil Service, Inc. v. Koch Refining Co. and Koch Industries, Inc., 582 F.Supp. 1061 (N.D.Ill.1984). In the interest of economy and effi ciency, we later stayed a civil action in the Northern District of Georgia. Martin Oil Service, Inc. v. Koch Refining Co. and Koch Industries, Inc., No. 81 C 1844, slip op. (N.D.Ill. Aug. 6, 1984). Our memorandum and order of May 15,1986, established the methodology for computing the alleged overcharges and suggested that the appointment of a special master to supervise the relevant calculations might be appropriate. Martin Oil Service, Inc. v. Koch Refining Co. and Koch Industries, Inc., 636 F.Supp. 1186 (N.D.Ill.1986). We refused to reconsider our methodology choice by denying defendants’ motion in limine on September 29, 1986, and simultaneously held that the appointment of Special Master Avrom Landesman was appropriate and, ab sent objection by the parties, would be forthcoming. Martin Oil Service, Inc. v. Koch Refining Co. and Koch Industries, Inc., No. 81 C 1844, slip op. 1986 WL 11006 (N.D.Ill. September 29, 1986). Most recently, we deferred decision on defendants’ motion for summary judgment alleging a stat ute of limitation defense until after the court received the special master’s report. Martin Oil Service, Inc. v. Koch Refining Co. and Koch Industries, Inc., No. 81 C 1844, slip op. (N.D.Ill. March 17, 1988). Mr. Landesman’s findings were received by this court in April of last year. The court has reviewed the special master’s report and rules on the issues discussed therein, as well as various other pending matters. Necessary background is provided, though material discussed in our prior opinions may be given short-shrift as we are all too aware of the difficulty of beginning at “square 1” with a subject matter as complex as this. I. STRIKING SPECIAL MASTER’S REPORT AND STANDARDS FOR REVIEW A. Background We initially raised the possibility of appointing a special master in our memorandum and order of May 15, 1986. The parties were therein invited to submit comments on the advisability of utilizing a special master as well as to suggest particular individuals for the appointment. Martin opposed the appointment of a special master and made no recommendations. Koch argued in favor of the proposed appointment and suggested two persons, one of whom was Avrom Landesman of the Department of Energy. Martin replied to Koch’s arguments as to the necessity of a special master, but again made no suggestions as to particular individuals worthy of consideration. Even more important, Martin registered no objection to the two persons proposed by Koch. Our memorandum and order of September 29, 1986 held that the appointment of a special master was appropriate and that Avrom Landesman appeared to be well-suited for the task. Given Martin’s failure to comment on the appointment of Mr. Landesman, we offered it an additional opportunity to object: Unless this court is advised by plaintiff of cogent reasons to the contrary, it will in 14 days inquire of Avrom Landesman whether he is available for appointment. Slip op. at 8 (Sept. 29, 1986). Before the special master commenced work pursuant to his appointment, counsel for Martin Oil appeared before this court for status conferences on October 27, 1986, November 20, 1986, and January 22, 1987. However, not until November 11, 1988, after Mr. Landesman’s report was issued, and some two and one-half years after his name was first suggested, did the plaintiff object to his suitability as special master. B. The Choice of Mr. Landesman In sum, we feel Martin Oil has waived its right to object to Mr. Landes-man’s appointment, on whatever grounds may have existed. To hold otherwise would permit parties such as Martin Oil to base their decisions whether or not to object to particular special masters on the conclusions those appointees subsequently reach. This court cannot condone such manipulation of Rule 53, and thus plaintiff’s motion to strike the report of the special master is denied. In what can only be characterized as an over-abundance of caution, we now discuss the substantive objections to Mr. Landes-man’s appointment. Martin alleges that Mr. Landesman, while employed as acting special counsel for the Department of Energy, negotiated and settled the government’s overcharge claims against Koch for a purportedly insufficient amount. Martin contends that the appointment of Mr. Landesman violated (1) 18 U.S.C. § 207(a), as a conflict of interest; (2) D.R. 9-101(B), as unethical attorney behavior under the ABA’s Model Code of Ethics; and (3) Canon 3 of the ABA’s Code of Judicial Conduct, as unethical judicial behavior. We find each of these allegations substantively baseless. Section 207 is entitled, “Disqualification of Former Officers and Employees; Disqualification of Partners of Current Officers and Employees.” It addresses the problem of individuals who attempt to utilize the knowledge and influence gained in government service to further private ends. More specifically, the scope of § 207(a) is limited to [wjhoever, having been an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia, including a special Government employee, after his employment has ceased, knowingly acts as agent or attorney for, or otherwise represents, any other person (except the United States), in any formal or informal appearance before, or, with the intent to influence, makes any oral or written communication on behalf of any other person (except the United States).... 18 U.S.C. § 207(a). This provision is irrelevant to Landesman’s role as special master. In this capacity he has not acted as an “agent or attorney, for, or otherwise represented] a party.” Instead, he has served pursuant to court appointment. Special Master Landesman has acted as an extension of the third branch of government— the one “party” explicitly exempted by the statute. And as anyone even passingly familiar with the operative ethical norms knows, an attorney is permitted to represent conflicting interests if all parties consent. See Illinois Code of Professional Responsibility, Rule 5-105(c); ABA Model Rules of Professional Conduct, Rule 2.2; ABA Model Code, DR 5-105(C). Martin also alleges that Mr. Landes man is “constrained” by Disciplinary Rule 9-101 — "Avoiding Even the Appearance of Impropriety” — subsection (B): A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee. ABA’s Model Code, D.R. 9-101(B). We fail to see how Mr. Landesman’s appointment — after both sides had ample opportunity to object to his selection — gives even the appearance of impropriety. As noted above, Mr. Landesman’s current efforts on behalf of a United States District Court can hardly be characterized as “private employment.” In addition, the prior and current matters are substantively distinct. Mr. Landesman negotiated a settlement on behalf of the government in his prior position; his responsibility here as a special master is to aid in fact-finding pertaining to alleged overcharges in private transactions. Nor can a special master be fairly described as acting “in the capacity of a lawyer.” Such a characterization is an essential prerequisite to finding Mr. Landes-man in violation of the operative state provision—the Illinois Code of Professional Responsibility, D.R. 9-101. Subsection (b) is the comparable provision: Unless he is bound by a stricter standard imposed by the public body, a lawyer who leaves public employment shall not appear in the capacity of a lawyer before the public body by which he was employed on a matter in which during the public employment the lawyer participated personally and substantially or which was under his official responsibility. Mr. Landesman is appearing before no public body, let alone the same one which had previously employed him. The substantive distinction between the matter at bar, and that in which Mr. Landesman previously participated, also addresses the purported violation of the ABA Code of Judicial Conduct, Canon 3, subsection (C)(1). Furthermore, while special masters do perform quasi-judicial functions, we are hesitant to apply the Code of Judicial Conduct to them with full force and effect. Unlike the traditional federal bench, they are appointed at a district court’s behest. As such, special masters are more like arbitrators whose independence is best safeguarded by the parties themselves before the results of the arbitration are made available. No violation of either the ethical rules for lawyers or those for judges has occurred. But even assuming arguendo that Mr. Landesman’s appointment could be so characterized, we think it irrelevant for these purposes. The parties here have consented to the appointment and we painstakingly review infra each of their objections to his report. Whatever ethical transgressions can be dreamed up would be resolved elsewhere without impacting this adversary proceeding. Defendants move for their attorneys’ fees attributable to plaintiff’s motion to strike. But in the absence of an objectively “serious misstatement” of law, contra Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir.1986), cert. denied, 479 U.S. 851, 107 S.Ct. 181, 93 L.Ed.2d 116 (1986), we are not about to add another level of conflict to an overly-contentious lawsuit. Both plaintiff’s motion to strike the report of the special master and defendants’ motion for attorneys’ fees are therefore denied. II. MONTHLY INCREMENTS USED TO COMPUTE RECOVERIES AND OVERCHARGES The special master’s report suggests that an agreement has been reached between the parties as to the monthly increments of price increases to be used in computing recoveries and overcharges (rpt. at 1). Neither party appears to contest this conclusion: Martin agrees directly (pi. omnibus brief at 1-2) while Koch, in its omnibus brief, does not argue to the contrary. The special master has represented that a listing of the particular monthly increments will be forthcoming to this court. We look forward to its receipt. III. THE APPROPRIATE PRICING PERIOD This court has reviewed the report of the special master and the comments of both sides thereto. Before disposition of the issues resolved and raised therein, we request the special master to clarify his conclusions pertaining to the pricing period issue. A. Background The special master concludes that “it is suggested that the proper period for measuring recoveries is by calendar month” (rpt. at 3). Plaintiff merely echoes that “the Special Master has recommended that the proper period for measuring those recoveries is by calendar month” (pi. omnibus brief at 2). With this suggestion, the special master contends that “it appears that Koch does not disagree.” Id. Defendants take issue with the special master’s recommendation and argue that his recommendations are based upon misinterpretations of a prior representation. Koch contends the special master’s conclusion “that with respect to its retail stations, there was not price change uniformity” (rpt. at 3) is based on an erroneous interpretation of Koch’s claim that “it is difficult for us to show letter perfect technical complete coincidental price changes. Tr. at 225” (defs. omnibus brief at 4). Koch claims it was instead contending that while “price adjustments were centrally and universally directed,” “one station manager may have put it in place at 11:59 P.M. of a given day and another 2 minutes later resulting in a different day.” Id. at 4. Koch also claims one of its representations—that the choice of the pricing period may not substantially impact on the cost recovery figures—was wrongfully interpreted to have been a concession of the issue. Id. B. The Need for Clarification We act pursuant to our equitable powers: It is the duty of the court to act on the master’s report, and it may confirm, modify, reject, reverse, set aside, or recommit it, or frame an issue for trial by a jury, as the circumstances may require. 30A C.J.S. Equity § 555 (1965). “The court has discretion, on motion of a party or ex mero motu, and for good cause shown, to recommit a master’s report after it has been filed or permit the master to withdraw it for correction and amendment.” Id. at § 558. The report has been filed and both sides have been heard through their omnibus briefs. Prior to our dispositive review of the special master’s conclusions, however, we request a “further report of the evidence taken,” id., namely, some clarification and amplification of the pricing period issue. We request elaboration on the posture which the special master assumed in his decision. On May 15, 1986, this court concluded that the decision as to whether to use a monthly deeming period or another pricing period was a “factual dispute,” leaving “determination of which methodology in the circumstances of this case most accurately measures overcharges” to the trier of fact. Martin Oil Service, Inc. v. Koch Refining Co. et al., 636 F.Supp. 1186, 1191-1192 (N.D.Ill.1986). We had interpreted Kickapoo Oil Co., Inc. v. Murphy Oil Corp., 779 F.2d 61 (Temp.Emer.Ct. App. (“TECA”) 1985), to permit pricing period methodology, but we left to the trier of fact—for these purposes, the special master—the question as to whether pricing period calculations were impossible here because of the lack of cost recovery records on the pricing period basis. 636 F.Supp. at 1191. Our fear is that the special master did not inquire into the possibility of an accurate non-monthly pricing period in determining product and non-product costs because he may have thought Koch had conceded the issue. We understand that this inquiry depends on the ability of a refiner like Koch to demonstrate uniform price increases with available records. We merely hope to emphasize that the special master’s conclusions should be based on Koch’s ability to make such a demonstra-ton. We see how the pricing period can be very relevant because it determines how often both product and non-produet costs are deemed recovered. We are therefore reluctant to decide the matter without further amplification by the special master. IV. SALES/EXCHANGES Martin’s overcharge calculations assume that certain of the transactions which Koch had characterized as “exchanges” were in reality “sales.” An important consideration in the computation of overcharges is the recovery of costs. Overcharges represent the difference between the actual price charged and the maximum lawful sales price (“MLSP”). The MLSP equals an allowable cost increment added to the base price determined as of May 1973. The cost increment figure is determined by adding increases in both product and non-product costs to what is referred to as “banked” costs, if any of the latter exist. A particular refiner’s bank is measured by the addition of costs not recouped (presumably volume was overstated), the subtraction of costs actually recovered (presumably volume was underestimated), and the subtraction of costs “deemed” recovered pursuant to the “deemed recovery rule,” a/k/a the “equal application rule.” A firm’s allowable cost increment must reflect the status of its banked costs. It may recover costs that have not been recouped, but its cost increment must also reflect, where appropriate, prior over-recoveries. To determine the highest monthly increments and thereby ascertain Koch’s recovery of costs — both actual and deemed— Martin has assigned a value to the revenue derived by Koch from these “sales.” Koch contends the transactions in question were “exchanges” as a matter of law, and that therefore Martin’s calculations are incorrect. Both parties have briefed in limine the issue of opinion evidence on whether defendants’ exchanges should be treated as sales. We have also reviewed the special master’s report and the parties’ comments thereon. As a matter of law, we hold that the transactions have been appropriately categorized as “exchanges” within the meaning of the relevant DOE regulations. We will, however, permit Martin to allege such exchanges were not properly reflected in calculating its recoveries, but such a demonstration would have to be based on actual (not deemed) recoveries. Because we conclude that the transactions have been appropriately categorized as “exchanges,” we need not decipher whether the November 20, 1981 stipulation disposes of Martin’s claim. A. Background Both sides consented to providing the special master with only the pleadings filed in a similar proceeding in Wisconsin, entitled U.S. Oil v. Koch, No. 79-C0659, slip op. (E.D.Wis. Oct. 15, 1986). Hearings before the special master were conducted where Martin’s experts testified that they regarded “Koch’s large volume of exchanges as being unusual in the industry, as having represented a departure from Koch’s historic practice, and as being ab-berational in the sense that gasoline was exchanged for exempt products” (rpt. at 4). The special master found this testimony to be too “conclusionary in nature” and held that “the record of this proceeding does not contain the kind of data that would enable a finding to be made on a factual basis” (id.). He found that none of Martin’s experts conducted a comprehensive study of all of Koch’s exchanges and that there was no testimony the gasoline in question had been actually refined — as opposed to purchased — by Koch (id.). We, however, need not.review these factual issues in this context. Koch has chosen to argue the sales/exchange issue as a matter of law (defs. mem. in supp. of motion in limine at 3). It contends the DOE chose not to prohibit exchanges but instead to regulate them through a particular cost recovery formula. Martin suggests that the use of exchanges was a deliberate attempt to evade the maximum pricing regulations and should therefore be treated as sales. As we detail below, both the special master and Judge Warren of the Eastern District of Wisconsin correctly concluded that the DOE regulations properly prescribe the method by which Koch is to account for exchanges and that method is inconsistent with Martin’s effort to calculate the revenue created by the transactions by treating them as sales. B. Procedural Posture Martin isolates several facts which it contends demonstrate that Koch’s transactions are “disguised sales.” As isolated by the special master, they are as follows: (1) that controlled product was exchanged for uncontrolled product; (2) that Koch delivered enormous quantities of gasoline in return for exempt products (in two months larger volumes than total sales reported to DOE); (3) that the cash component of the exchange differential was determined by the relative spot market price of the products traded (not by the maximum lawful price of the gasoline traded away by Koch); (4) Koch’s trades of gasoline for # 2 fuel oil commenced only after # 2 fuel oil was decontrolled in 1976; (5) Koch sold the fuel oil obtained in its exchanges on the spot market rather than to its historical customers; (6) Koch’s profit margins increased substantially in the years in which the exchanges took place. (Rpt. at 5.) Given that Koch has chosen to argue the issue as a matter of law, we treat the motion in limine at issue as a motion for partial summary judgment. That posture, pursuant to Fed.R.Civ.P. 56, requires us to view all disputed facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmov-ant. Standard Oil Co. v. Department of Energy, 596 F.2d 1029, 1065 (TECA 1978). It is true that summary judgment is “seldom appropriate” in price overcharge cases. Such cases often involve “indefinite factual foundations involving a welter of statutory or regulatory provisions the application of which may depend on undeveloped facts.” McWhirter Distributing Co., Inc. v. Texaco, Inc., 668 F.2d 511, 519 (TECA 1981), quoting Kennedy v. Silas Mason Co., 334 U.S. 249, 256-57, 68 S.Ct. 1031, 1034, 92 L.Ed. 1347 (1948). Koch bases its motion, however, only on those facts which are undisputed: 5. In 1978, 1979, and 1980, defendant Koch Refining Co. entered into written exchange agreements with other firms pursuant to which it physically delivered gasoline to such other firms and physically received back in exchange fuel oil plus a payment in cash to compensate it for the difference in market values. These were transactions in which Koch Refining Co. and such other firms reciprocally gave up and received refined product or residual fuel oil and in which one firm made a payment in cash to the other to compensate the other for differences in the values of the volumes given up. The cash payments were made to adjust for differences in the market values of the products exchanged, attributable to the differences in the type of product or the location of the products exchanged. The transactions were completed in accordance with the terms of the exchange agreements and the exchange agreements accurately record the transaction. (Pi’s response at 1, admitting paragraph 5 of defs’ statement of material facts.) By assuming these uncontested facts, and viewing those which are disputed in the light most favorable to Martin, “the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law.” McWhirter Distributing Co., Inc., 668 F.2d at 519, quoting Palmer v. Chamberlin, 191 F.2d 532, 540 (5th Cir.1951). The issue isn’t, as Martin alleges, whether courts can never question the parties’ characterization of particular transactions. We look instead to whether there a dispositive matter of law. We hold herein that Koch was within its legal rights in characterizing the transactions as “exchanges,” and that Martin’s calculations which “correct” Koch’s treatment are therefore contrary to law. C. The Regulatory Definition of Exchange To ascertain the DOE’s constraints within which refiners such as Koch operated, we consider the Energy Department’s rule-making and the resulting changes to the Code of Federal Regulations. We begin our analysis in September of 1974. The mandatory petroleum price regulations were amended to clarify and make explicit the requirement that prices charged for each covered product must reflect the equal application of increased product costs to each class of purchaser, and that failure to charge prices that reflect equal application of increased product costs except to the extent the seller is precluded from charging such prices by the price term of a contract in effect on September 1, 1974, will result in unrecouped increased product costs which the seller will not be permitted to recover in a subsequent month. 39 Fed.Reg. 32306-07 (Sept. 5, 1974) (codified at 10 C.F.R. §§ 212.83, 212.93). This represents the codification of the Equal Application Rule, “that a seller may not select among classes of purchaser of the same product those classes as to which it will apply increased costs and those classes as to which it will ‘bank’ increased costs.” Id. at 32307. On September 14, 1977, the Federal Energy Administration (“FEA”) issued a notice of proposed rulemaking and public hearing to consider amendments to the Mandatory Petroleum Price Regulations. The topics considered included the appropriate allocation of increased crude oil and non-product costs to covered products received pursuant to exchange transactions. 42 Fed.Reg. 48343 (Sept. 23, 1977). The rulemaking continued after the FEA’s functions were transfered to the DOE on October 1, 1977, pursuant to the Department of Energy Organization Act, Pub.L. 95-91, and Executive Order No. 12009, 42 Fed.Reg. 46267 (Sept. 15, 1977). Acting by delegation of the Secretary of Energy, and in light of the comments received, the administrator of the Economic Regulatory Administration (“ERA”) promulgated special interim regulations concerning exchanges that were adopted during December 1978 and given an effective date of February 1, 1979. 43 Fed.Reg. 59810 (Dec. 21, 1978) (hereinafter, the “exchange amendment”). Our inquiry begins with the definition of “exchange,” which evolved from the rulemaking described above: “Exchange” means, for purposes of this subpart, a transaction in which two firms reciprocally give up and receive crude oil, refined product, or residual fuel oil (but not crude oil for refined product or residual fuel oil). The term includes exchanges in which one firm may make a payment in cash or other property to compensate the other for differences in the values of the volumes involved or to compensate the other for costs incurred pursuant to the transaction, and it also includes matching purchase and sale transactions. The term does not include a firm’s acquisition or transfer of refined product or residual fuel oil under a service agreement. 10 C.F.R. § 212.82 (1980). We do not see how the above excludes the transactions at issue from the meaning of “exchange.” This definition does not make mention of the relationship or the location of the transacting parties, nor does it specify particular volumes or purposes of the transactions. We therefore fail to see the import of Martin’s claim that the transactions should be treated as sales because Koch sought out new customers with whom it transacted in new locations. The same is true for Martin’s claim that the size of the transactions, as compared to prior periods, is somehow probative as to how the transactions should be legally treated. With respect to unlike exchanges, the definition itself contemplates the trading of dissimilar products as long as crude oil is not traded for either refined product or residual fuel oil, and the time period when those transactions occurred — purportedly only after # 2 fuel oil was decontrolled — is without relevance to the definition. Thus, Koch’s trades of gas for fuel oil are not beyond the meaning of exchange contained in the exchange amendment. The same can be said for the cash payments received incident to product trades since the definition explicitly includes transactions in which “one firm may make a payment in cash.” The supplementary information provided in the Federal Register surely removes any doubt as to the propriety of cash payments: An exchange frequently includes a cash or crude oil or product volume payment which (1) equalizes the values of the crude oil or products transferred, (2) reimburses a firm for costs incurred pursuant to an exchange, or (3) a combination of these two. 43 Fed.Reg. 59813 (Dec. 21, 1978). A distinct issue, however, relates to whether the payment in cash can only compensate a party for the difference in relative volume, and not market value based on product type differences. That limitation would draw on the phrase, “value of the volumes involved,” and would implicitly exclude from the definition of exchange transactions where the cash payment directly reflected the difference in value of the relative products. But we agree with the special master that the meaning of “exchange” should not be so narrowly construed. Initially, the limited interpretation would render “the values of the” in the phrase “differences in the values of the volumes” meaningless. “Differences in volumes” would have accurately reflected the purported definition — that cash can only compensate for differences in volume and not product type. “The values of the volume”, however, connotes more. It suggests that something in addition to differences in volume might justify “payment in cash or other property.” Because it provides meaning to the words employed in the definition, we conclude transactions where payments compensate for product differential should not be excluded from consideration as an “exchange.” The limited reading would also make little policy sense: it would define “exchange” to exclude transactions where cash payments are incident to trades of equal volume of dissimilar products, but would include transactions where cash payments are incident to trades of both differing product and volume. We find no justification for treating transactions differently solely on the basis of whether equal or unequal volumes are traded. Finally, the limited reading is inconsistent with the straightforward language describing the rationale and implementation of the exchange amendment: Differences in the market value of products exchanged are generally attributable to either the differences in the type of product or the location of the products exchanged. 43 Fed.Reg. 59813 (Dec. 21, 1978). In sum, we do not see how addition leads to multiplication: if each individual characteristic isolated by Martin is consistent with the prescribed definition of exchange, we cannot see how several of them can cumulate to render the transactions at issue outside the definition. This is not to say, however, that Koch can avoid the DOE’s pricing regulations merely by labeling its transactions “exchanges.” Both Martin and the special master note enforcement actions where certain exchange transactions were deemed violative of the price limitations imposed by the DOE regulations. See, e.g., Getty Oil Company v. DOE, 749 F.2d 734 (TECA 1984), cert. denied, 469 U.S. 1209, 105 S.Ct. 1176, 84 L.Ed.2d 325 (1985). In Getty Oil, for example, the DOE held the higher market value of foreign crude oil sold in a reciprocal sale for domestic crude oil constituted a violation of maximum price regulations for domestic crude. Even though the DOE found the two contracts were part of a single arrangement constituting matching purchases and sales and therefore demanded treatment as an “exchange,” the transactions were still found violative of the maximum price regulations. 749 F.2d at 738. Martin invokes Getty Oil to demonstrate that the parties do not have the last word on how particular transactions are viewed. With this we cannot disagree. In Getty Oil the Temporary Emergency Court of Appeals upheld the DOE’s decision to look beyond the parties’ characterization of a transaction and held that [a] regulatory agency is no more bound than is a court by the form in which regulated parties choose to cast a transaction, but may look beyond form to economic substance, in order to further the regulatory purposes of Congress. 749 F.2d at 737 (citations omitted). Here, however, we think a comprehensive review of the regulations pertaining to the sale/exchange issue reveals a recognition by the DOE that exchanges would be used by refiners such as Koch in an effort to move their regulated gas to others in exchange for unregulated oil. The DOE chose, for whatever reason, not to bring an action against Koch for violation of the maximum price regulations. So while the court in Getty Oil reviewed a DOE decision to criticize the parties’ formulation, here we have DOE tolerance of and perhaps regulatory preference for Koch’s characterization. And instead of a DOE enforcement action, here a private party alleges that a refiner had recovered a higher increment of its costs than it had accounted for because the transaction was described as an exchange. The history of and rulemaking surrounding the relevant regulations makes clear that Koch’s accounting procedures were not contrary to law. D. The Methods of Accounting Early versions of the price rule— contained at 10 C.F.R. § 212.83—specified the allocation of increases in crude oil and non-produet costs incurred in a particular month to the volume of the particular products actually refined (by the refiner concerned). “The so-called ‘R’ factor of the refiner price formula allocated such increased costs to each refined product or product category on the basis of the proportion its volume bears to the total volume of products refined.” 43 Fed.Reg. 59811 (Dec. 21, 1978). The fear was that since the “volumes of covered products received by exchange are not ‘refined by the refiner concerned,’ the ‘R’ factor does not explicitly provide for the allocation of increased crude oil and non-product costs to volumes of covered products received by exchange.” Id. at 59812. Rulemaking was instituted to avoid what has come to be called the “strict application” of the R-factor. An illustration of the problem with respect to cost allocation is found in the Federal Register. See 43 Fed.Reg. at 59812 (Dec. 21, 1978). Assume Refiner A refines 2,000 barrels of gasoline and 2,000 barrels of aviation fuel, at a total increased cost of $32,000. Assume also that Refiner A exchanges 1,000 of its 2,000 barrels of gasoline for 1,000 additional barrels of aviation fuel. The result is that Refiner A now holds 1,000 barrels of gasoline and 3,000 barrels of aviation fuel. The issue is how to allocate the increased costs to the new product mix. Under a strict application of the R-factor, Refiner A allocates $16,000 to both the gasoline and aviation fuel product categories as if the exchange never took place. $16,000 is then spread between both (1) 1,000 barrels of gasoline, permitting a cost allocation of $16 per barrel, and (2) 3,000 barrels of aviation fuel, permitting a cost allocation of $5.33 per barrel. The FEA proposed adoption of a “cost allocation” method, and also received comments on both an “alternative cost allocation” method and a “sales” method. The cost allocation method permitted cost allocation to the product received in an amount equivalent to that allocated to the product given up. The example here is where a refiner exchanges 2,000 barrels of gasoline, having increased costs of $10,000, for 2,150 barrels of aviation fuel. The hypothetical Refiner A above would be left with no gasoline and 4,150 barrels of aviation fuel. The cost allocation method requires Refiner A to reduce the total increased costs allocated to gasoline by $10,000 and permits it to increase the total increased costs allocated to aviation jet fuel by the same amount. This leaves $6,000 ($16,000 minus $10,000) to allocate to gasoline—though in the example none is left—and $26,000 ($16,000 plus $10,000) to allocate to its 4,150 barrels of aviation fuel—permitting the allocation of $6.27 per barrel. The alternative cost allocation method is only slightly different. It permits allocation to the products received of an amount equal to the increased costs that were actually passed through in prior sales. This contrasts with the cost allocation method’s use of the increased costs attributable to the products given up. “Under this [alternative cost allocation] method, a greater or lesser amount of increased costs than were volumetrically allocated to volumes of product given up in a particular month would be allocated to volumes of product received, depending upon the amount of such increased costs actually passed through in lawful prices of the product type given up.” 43 Fed.Reg. 59812 (Dec. 21, 1978). The sales method looks instead to market prices. A refiner is permitted to establish market revenues, based on lawful prices, that could have otherwise been received from the sale of the products given up. The refiner would then be permitted to recover the total dollar amount of such revenues in prices of the product received in the exchange. For the purpose of calculating imputed recoveries, Martin has assigned a value to the revenue derived by Koch from the exchanges it considers to be sales. In essence, this is an attempt to institute the sales method of accounting by emphasizing the revenues realizable had the exchanged product been sold. Of course, the sales method was rejected by the ERA in favor of the cost allocation method. Notice was taken of “opposition to the sales method.” See 43 Fed.Reg. 59813 (Dec. 21, 1978). Firms had commented that “the adoption of the sales method would require the establishment of a new class of purchaser designations and modifications of the.equal application rule and banking provisions, thereby further complicating the price regulations applicable to refiners.” Id. The special master agrees that the DOE decided against adoption of the sales method because of its “complexity, novelty and administrative cumbersomeness” (rpt. at 8). Since these regulations were promulgated in 1978, they necessarily took into account previous efforts at deregulating particular products. Residential fuel oil (# 4 oil) had become exempt from the pricing regulations in June 1976, see 41 Fed. Reg. 13896 et seq. (April 1, 1976) (codified at 10 C.F.R. § 210.35), while heating oil (# 2 oil) and diesel fuels (# 2-D fuel) became exempt on July 1, 1976, see 41 Fed. Reg. 24516 et seq. (June 16, 1976) (codified at 10 C.F.R. § 210.35). In fact, decontrol was probably the rai-son d'etre of the accounting specifications. The summary of the FEA’s proposed rule-making specifies that [t]he purpose of the proposed amendments regarding exchanges is to state in the regulations the general FEA compliance policy regarding the method for determining the increased costs attributable to petroleum product exchanged, making clear that decontrol actions have not modified that policy. 42 Fed.Reg. 48342 (Sept. 23, 1977). The FEA found no reason to alter its chosen method of accounting for increased costs: FEA’s actions taken with respect to the decontrol of petroleum products have not altered the basic principle of imputing increased costs attributable to crude oil or product exchanged away to crude oil or products received in the exchange, and FEA does not intend in this proceeding to alter this basic principle. Id. at 48343. We are unwilling, as well as unable, to question the DOE decision. “[T]he regulations provide a single, prescribed procedure for calculating recoveries for exchanges” (rpt. at 8). The exchange amendment, in particular, chose the cost allocation method and rejected the sales method to maintain simplicity and objectivity in accounting for exchange transactions. We agree wholeheartedly with the special master that “[tjhe equal applications rule ought not to be stretched beyond its plain meaning when the DOE itself has provided for a specific regulatory vehicle to handle exchanges.” Id. at 9. With this, we concur with Judge Warren’s decision in US. Oil. He therein noted that “comments were requested regarding the ‘sales’ method of accounting for exchange transactions and that such method was rejected because of industry opposition to it.” No. 79-C-659, slip op. at 4. His conclusion with respect to Koch’s motion in limine, a motion virtually identical to Koch’s motion at bar, is particularly appropriate: The Court finds that the exchange transactions at issue here were indeed exchange transactions under the applicable regulations. These exchanges did not serve to undermine the petroleum price regulations. The gasoline exchanged still remained subject to price regulations, with simply another seller substituted for the original seller, and the exempt product remained exempt with the substituted seller. The regulatory scheme designed to control the prices of particular products was not circumvented. The purpose of the regulations was not to limit refiner profits; to the extent that Koch profited by legally exchanging controlled products for uncontrolled products, it engaged in shrewd business dealing rather than a circumvention of the price regulations. Accordingly, U.S. Oil is precluded from presenting expert opinion evidence attempting to establish that these exchange transactions were in fact sales transactions. The Court hereby GRANTS Koch’s motion. Id. at 5 (emphasis in original). Martin takes issue with Judge Warren’s conclusion that the “gasoline exchanged still remained subject to price regulations, with simply another seller substituted for the original seller.” It contends “that important assumption is simply wrong” (mem. in opp. to defs. mo. in limine at 8 n. 6). All agree that Koch received exempt fuel in exchange for sending regulated gasoline to other businesses — resellers who subsequently sold the regulated gas. Martin implicitly agrees that those resellers were subject to the price regulations covering gasoline, but it contends that the prior exchange transaction permitted the reseller to effectively charge market prices. “[T]he resellers were entitled to calculate their maximum lawful prices when they resold the gasoline by using as their cost the cost of the product given up in exchange plus the cash differential they paid to Koch” (mem. in opp. to defs. mo. in limine at 20). They refer this court to ruling 1977-3, 3 Energy Mgm’t (CCH) 1116,067, and conclude that “gasoline that could only lawfully be sold by Koch at a price well below spot market prices could now be sold lawfully by the reseller/exchange partner at spot market prices, with Koch pocketing the profits” (mem. in opp. to def’s mo. in limine at 21). At first blush, it is clear that Martin overstates the ability of the reseller to price previously regulated fuel at market prices. The regulations which the DOE promulgated in 1977 and implemented in 1978 specify exactly how the reseller determines its MLSP. The relevant portion of the regulations are as follows: § 212.96 Exchanges. (a) Covered Product Received Pursuant to Exchange Agreements. (1) The unit cost of a covered product received by the seller pursuant to an exchange shall be deemed to be the weighted average unit inventory cost of that product used by the seller to determine its lawful price on the date the product is received by the seller. (2) Notwithstanding subparagraph (1), where, on the date of receipt of covered product, pursuant to an exchange, the inventory volume of purchased product of the type received in the exchange constitutes less than twenty-five percent of the seller’s total inventory volume of that product (both purchased and received in exchanges including the exchange in question), the unit cost of the covered product received in the exchange shall be deemed to be the weighted average unit inventory cost attributable to the product given up on the date the covered product is received, multiplied by the volume of product given up, and divided by the volume of the product received in the exchange. 10 C.F.R. § 212.96 (1980). In sum, this provision effectively prevents the reseller from allocating costs derived solely from the market value of the product given up in exchange. Instead, the regulations provide that “a seller will assign to volumes of product received a unit cost equal to the weighted average unit cost of that product currently in inventory.” 43 Fed.Reg. 59816 (Dec. 21, 1978). Subparagraph (2) prevents resellers from manipulating their inventories so as to raise the weighted average. Resellers cannot deliberately procure a small inventory at inflated prices so as to profit by reselling a larger quantity subsequently received in exchange at a price based predominantly on the previous procurement. Finally, ruling 1977-3 is without relevance. It permitted resellers of covered products to separately calculate the increased costs of products purchased and immediately thereafter resold. The exchange amendment described above instead dealt directly with exchanges of covered for exempt product. Further, ruling 1977-3 interpreted the permissible scope of reseller accounting only in the period prior to May 1, 1976. By its terms, the ruling of 1977-3 was that the hypothetical “Firm A may, prior to the adoption of the ‘separate inventory’ regulations [on May 1, 1976], separately calculate the increased costs of the cargo lot of product purchased and resold to Firm B.” 3 Energy Mgm’t (CCH) ¶ 16,067 (1980). Because the transactions at issue occurred between 1978 and 1980, ruling 1977-3 is irrelevant. We do, however, think Martin has highlighted how the DOE-specified accounting procedures could be employed to render the price regulations less effective. This is the crux of the testimony of Melvin Goldstein, Martin Oil’s expert: [GJasoline for fuel oil exchange[s] in effect, transformed the gasoline into decontrolled gasoline. In my view that result is directly contrary to regulatory intent. (Affidavit of Melvin Goldstein, app. C to mem. in opp. to defs. mo. in limine at 14.) That also explains why it is not economically irrational for Koch’s exchange partners to enter into the transactions — contrary to Martin’s claim, they would be able to reflect the value of the exempt product they sent to Koch in the resale price of the gasoline they received. The question, however, is whether Mr. Goldstein or this court should second-guess the informed judgment of DOE in promulgating the accounting specifications — whatever their effect. In fact, DOE’s decision not to prosecute directly the parties to the exchanges at issue, for violation of the MLSP, further demonstrates that Koch merely took advantage of the accounting procedures explicitly deemed permissible by the exchange amendment. As a matter of law, therefore, Koch has appropriately categorized the transactions in dispute as “exchanges.” Martin can, however, allege that such exchanges were not properly reflected in calculating its recoveries, but such a demonstration would have to be based on actual — not deemed— recoveries. V. 1980 REFILING AND SUBSEQUENT STIPULATION The dispute here arises over (1) whether Koch’s 1980 refiling, which reallocated costs incurred in producing exempt products to controlled products, was legal, and (2) if not, whether stipulation Martin Oil waived its right to challenge Koch’s allocation in the November 20, 1981. We concur with the special master’s judgment that the 1980 filing was contrary to law, and add that Martin Oil reserved its right to contest the reallocation. A. Background 1. The Regulations As discussed earlier, the mandatory petroleum price regulations, 10 C.F.R. § 212, provided a formula for determining the maximum allowable price which a refiner could charge for a particular product. One crucial component of that calculation is the increase in product and non-product costs since the May 15, 1973 baseline. Because the MLSP for each refined product required a mechanism to allocate the total increased crude oil costs among the various products, DOE, pursuant to the Economic Stabilization Act, 12 U.S.C. § 1904 note (the “ESA”), adopted volumetric apportionment — the “V” factor. The V-factor was a fraction representing the increased crude oil costs the refiner could pass on to a particular product category. The numerator of the fraction was the total volume of the particular covered product sold in the relevant time period, and the denominator was the total volume of all covered products sold over the same period. The ESA was replaced by the Emergency Petroleum Allocation Act, 15 U.S.C. § 751 et seq. (the “EPAA”) in 1974. The latter Act exempted certain products which the ESA had regulated, namely, petroleum, coke, petroleum wax, asphalt, road oil, and refinery gas. In April 1974, DOE promulgated amendments to exempt from the coverage provisions of the agency’s regulations those products which were not covered by the EPAA. See 39 Fed.Reg. 12353 (April 5, 1974) (codified at 10 C.F.R. §§ 210.34 and 212.31). This exemption inevitably impacted on the V-factor formula because its denominator referred only to the total volume of “covered products sold.” Since the exempt products were no longer “covered products sold” and the allowable price increase was determined by multiplying the V-factor fraction by all increased crude oil costs (covered and exempt), increased costs attributable to exempt products could be passed through in the prices of covered products. In other words, the V-factor formula at that time could be used to raise the price of exempt products to reflect the increased costs incurred in the refining of controlled product. The DOE responded with an amendment to modify the existing method of volumetric apportionment. Promulgated on April 30, 1974, without prior notice or comment, “the 1974 amendment” changed the denominator of the V-factor to “the total volume of all covered products and all products refined from crude petroleum other than covered products_” 39 Fed.Reg. 15139 (May 1, 1974) (codified at 10 C.F.R. § 212.83(c)(2) (1974)) (emphasis added). Because the denominator thereafter reflected the volume of both exempt and covered products, this change effectively prohibited refiners from apportioning to the price of covered products any increased cost volu-metrically attributable to exempt products. The V-factor was again amended in February 1976 to allow refiners to allocate cost prospectively, based on either on the volume sold (the V-factor) or the volume refined (the R-factor). See 41 Fed.Reg. 5111 (Feb. 4, 1976) (codified at 10 C.F.R. § 212.83(c)). While the February 1976 amendment ;permitted the use of the R-factor instead of the V-factor in allocating increased costs, DOE went further in January 1977. With more and more petroleum products being exempted from price controls, the V-factor was perceived to cause price distortions. The DOE proposed to eliminate it entirely, see 41 Fed.Reg. 31863 (July 30, 1976), subsequently abolishing the V-factor rule and requiring the use of the R-factor effective March 1, 1977. See 42 Fed.Reg. 5027 (Jan. 27, 1977) (codified at 10 C.F.R. § 212.83(c)). 2. The Mobil Litigation After promulgation of the 1974 amendment, Mobil Oil filed a request for exception relief, claiming that adverse market conditions for its most plentiful exempt product prevented it from recovering the increased product costs allocable to it under the V-factor. It instead desired to recover those increased product costs by passing them through the prices of its controlled products. That request, a second request and appeals from both were all denied. In Mobil Oil Corp. v. DOE, 610 F.2d 796 (TECA 1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980) (“Mobil I”), Mobil Oil challenged the legal sufficiency of the 1974 amendment which effectively blocked its preferred cost allocation. The Temporary Emergency Court of Appeals declared the 1974 amendment to be “null and void” because it “altered the price regulation framework” without public notice and comment. 610 F.2d at 802. The court affirmed the district court’s ruling in part, but modified it by holding that Mobil could not reallocate costs continuously from April 1974 to the then-present time. The case was remanded for further findings to eliminate a potential conflict with the Energy Policy and Conservation Act (“EPCA”), 94th Cong. 1st Sess.Pub.L. 94-163, 89 Stat. 871 (1975) (codified throughout 5, 10, 15, 30, 42, 50 U.S.C.), which adjusted § 4(b)(2) of the EPAA, 15 U.S.C. § 753(b)(2), effective February 1, 1976. This amendment specified that the then existing regulations “shall not permit more than a direct proportionate distribution (by volume) to Number 2 oils (Number 2 heating oil and Number 2-B diesel fuel), aviation fuel of kerosene or naphtha type, and propane produced from crude oil, of any increased costs of crude oil incurred by a refiner....” Id. § 753(b)(2)(D). The tension between the district court’s ruling and the amendment to the EPAA resulted from the court’s holding that Mobil reallocate costs continuously from April 1974. The issue was that since the amendment to the EPAA specified proportionate allocation effective February 1, 1976, continuous reallocation up to the then present time would conflict with the regulations for the post-February 1 period. Mobil Oil Corp. v. Department of Energy, 647 F.2d 142 (TECA 1981) (“Mobil II”) soon followed. On remand, the district court had added a passage to its conclusions of law, which incorporated the relevant language of the EPAA amendment: At all times since April 1974, Mobil Oil Corporation has been and is entitled to allocate increased crude oil costs to products regulated by defendants; provided, however, that nothing in this judgment shall permit, from February 1, 1976 forward, more than a direct proportionate distribution (by volume) to Number 2 oils (Number 2 heating oil and Number 2-B diesel fuel), aviation fuel of a kerosene or naphtha type, and propane produced from crude oil, of any increased costs of crude oil incurred by Mobil. Mobil II evaluated Mobil’s contention that the judgment should be modified “to limit the regulated price passthrough of crude oil costs attributable to the five products exempted by April 30,1974 (a) to the period prior to February 1, 1976 and (b) costs not recouped by Mobil in its prices for these five products.” The court in Mobil II concluded: We reaffirm the prior holdings of this court that (1) the amendment to the Mandatory Petroleum Price Regulations promulgated on April 30, 1974 is null and void, and (2) the judgment is correct insofar as it permits Mobil to allocate exempt product costs to covered products for the period prior to February 1, 1976. We hold that the revised judgment, incorporating the provisions of § 4(b)(2)(D) of the EPAA, as amended, complied with the direction of the prior opinion for modification of the judgment to avoid possible conflict with the statute. On this basis we affirm the judgment, as modified by the district court, but express no opinion with respect to the validity and effect of the February 1, 1976 regulations or other subsequent regulations. 647 F.2d at 146-47. With this last proviso, Mobil II created uncertainty as to the application and validity of the 1976 amendment and the V-factor in general. On August 28, 1980, DOE proposed to repromulgate retroactively each of the cost allocation regulations in effect from 1974 to 1980, including the procedurally-void 1974 amendment and the February 1976 regulation. A notice of proposed rulemak-ing was issued, 46 Fed.Reg. 58871 (Sept. 5, 1980), and after evaluating the comments received and conducting a hearing the DOE adopted the proposed amendments and gave them retroactive and prospective effect. See 46 Fed.Reg. 7776 (Jan. 23, 1981) (codified at 10 C.F.R. § 212.83(c)). Mobil brought an action in the district court to enjoin the DOE’s repromulgation of the procedurally-void 1974 amendment “or from taking any other action inconsistent with the [district] court’s judgment of July 22, 1980.” The district court initially granted Mobil’s motion on September 21, 1981, and elaborated upon its prior ruling of October 8. In the latter order the court enjoined application of the “1981 ‘V factor’ ” amendments against Mobil for the entire period from April 30, 1974 through January 28, 1981. Mobil Oil Corp. v. Department of Energy, 678 F.2d 1083 (TECA 1982) (“Mobil III”), was the TECA appeal. As the court itself noted, two primary issues were presented: (1) whether the DOE may repromul-gate retroactively to April 30, 197f the regulation held invalid by this court in Mobil I, as reaffirmed in Mobil II; and (2) whether the district court properly enjoined enforcement to January 28, 1981, of the February 1, 1976 and subsequent amendments to the regulations. Id. at 1087-88 (emphasis in original). In sum, the court answered issue (1) by holding that the district court properly enjoined enforcement of the 1981 amendment for the period April 30, 1974 to February 1, 1976. Id. at 1091. But with respect to issue (2), the court found nothing to prevent the DOE from enforcing prospectively the February 1, 1976 and subsequent regulations. The scope of the injunction was therefore limited to the time period between April 30, 1974 and February 1, 1976. Id. at 1091. 3. The Refiling and the Stipulation In response to many of these developments, but prior to TECA’s holding in Mobil III, Koch amended some of its previously filed monthly cost allocation forms (“EIA-14 forms”) to allocate costs on the basis of a V-factor which did not include the volume of exempt products. On August 27, 1980, Koch refiled its EIA-14 forms for the months of December 1973 through June 1980. It was also with this legal backdrop that the parties stipulated to the use of the August 1980 forms. The stipulation and order (“stipulation” or “stip.”) was signed on November 20,1981, after Mobil I and II, and after the promulgation of the January 16, 1981 amendments but before their legal sufficiency was decided in Mobil III. The critical portion of the stipulation follows: The parties accept for all purposes, including the determination of whether Plaintiff was overcharged, and, if so, by what amount, the May 15, 1973, prices, classes of purchaser, May 1973 product and non-product costs, and increased product and non-product costs, as determined and utilized by Defendants in calculating increased costs and cost recoveries reported on forms EIA-14 and predecessors thereto submitted to the Department of Energy on August 27, 1980; provided that two issues are preserved and remain between the parties: (i) the validity, interpretation and proper application of the so-called equal application rule (10 C.F.R. § 212.83(h) and predecessor provisions); and (ii) the validity, interpretation and proper allocation of the so-called “V factor” rule (the regulation allocating costs to exempt products). * jje * $ * * The increased cost and recovery calculations as reported by Defendants on August 27, 1980, and accepted by the parties, shall be adjusted, if and to the extent necessary, to reflect the determinations of all aspects of the two above-described remaining issues, and the overcharge determinations shall be based on such calculations, as adjusted. (Stip., exh. 1 to mem. in support of pi. mo. in limine on the application of the V-faetor rule at 3-4 (emphasis added).) The issue with respect to the stipulation is whether the above provisions are to be construe