Case No. RF300-06619
March 20, 1998
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY
Application for Refund
Name of Petitioner: Gulf Oil Corporation/
F.O. Fletcher, Inc.
Date of Filing: June 5, 1988
Case Number: RF300-6619
I. Background
On July 25, 1985, the Economic Regulatory Administration of the Department of Energy (DOE) filed a Petition with the Office of Hearings and Appeals (OHA) requesting that the OHA formulate and implement procedures for distributing funds obtained through a consent order with Gulf Oil Corporation (Gulf). See 10 C.F.R. Part 205, Subpart V. The consent order resolved DOE allegations that Gulf violated the mandatory petroleum regulations in its sales of crude oil and refined petroleum products from January 1, 1973 through January 27, 1981 (the consent order period). On September 8, 1987, the OHA issued a Decision and Order setting forth final procedures for disbursing the portion of the Gulf settlement fund attributable to Gulf's sales of refined petroleum products. Gulf Oil Corporation, 16 DOE ¶ 85,381 (1987) (Gulf). In accordance with the goals of 10 C.F.R. Part 205, Subpart V, Gulf implements a process for refunding the consent order funds to purchasers of Gulf refined petroleum products who are able to demonstrate that they were injured as a result of Gulf's alleged overcharges. In the present case we will consider the refund application filed on behalf of F.O. Fletcher, Inc. (Fletcher), a reseller-retailer of Gulf gasoline.
In Gulf, we adopted a presumption that the alleged Gulf overcharges attributable to refined products had been dispersed equally in all sales of refined product made by Gulf during the consent order period. Gulf, 16 DOE at 88,736. We stated that in the absence of a demonstration of a disproportionate overcharge, a claimant would
be allocated a share of the consent order funds on a volumetric basis. We provided that eligible claimants would receive $0.00064 per gallon of covered Gulf product purchased.(1)Id. at 88,739. We also established a presumption of injury for a refiner, reseller or retailer requesting a principal refund of $5,000 or less. These applicants must document the volume of their Gulf purchases to receive a refund, but do not need to show that they absorbed Gulf alleged overcharges. Id. at 88,740-41. Moreover, we provided that an applicant seeking a refund greater than $5,000 could elect to receive a refund of 40 percent of its allocable share up to $50,000 (excluding interest), without demonstrating injury. Id.
However, we stated in Gulf that in order to receive a full volumetric refund above $5,000, a refiner, reseller or retailer applicant must demonstrate injury. That is, it must show that it did not pass through the overcharges to its own customers. As we stated in Gulf, this showing generally consists of two parts. First, the applicant must demonstrate that it had banks of unrecouped increased product costs in at least the amount of the refund during the period of controls. Second, the claimant must provide some other specific evidence that it did not pass through the alleged overcharge to its own customers. Id. at 88,740. Often, this showing is made through a demonstration that the applicant was placed at a competitive disadvantage as a result of its suppliers alleged overcharges.
The present claim is based on purchases of Gulf refined petroleum products made by Fletcher. According to the refund application, Fletcher purchased a total of 35,931,376 gallons of Gulf motor gasoline. This gallonage is supported by recapitulation sheets prepared during the refund period. The sheets tabulate the claimants purchases from each supplier by quarter and year. December 8, 1994 Letter, Exhibit E. We find that this documentation reasonably substantiates the volumes that the firm claims it purchased.
Fletcher also claims that it was disproportionately overcharged with respect to 30,780,616 gallons of Gulf gasoline that it purchased indirectly from Gulf through Tesoro Petroleum Corporation (Tesoro) during the period January 1974 through January 1977 (the Tesoro refund period). Fletcher requests a per gallon refund greater than the volumetric amount for those volumes. (2) The per gallon overcharge that Fletcher calculates is $.01761. That claim is discussed in detail below.
II. The Above-Volumetric Refund Claim
Fletchers support for its claim that Gulf overcharged Tesoro by more than the volumetric amount is based on a Proposed Remedial Order (PRO) that the DOE Office of Special Counsel (OSC) issued to Gulf. Fletcher further supports its above-volumetric refund claim by referring to litigation in which a United States district court found that Fletcher had sustained Gulf overcharges as a result of its Gulf/Tesoro purchases.
A. Regulatory Background
In order to understand Fletchers above-volumetric refund claim, it will be useful to discuss how refiners were required to establish their prices under the applicable DOE price regulations. Under the refiner price rule at 10 C.F.R. § 212.83(a), a refiner could not charge to any class of purchaser a price for any covered product in excess of the maximum allowable price (MAP). The MAP was defined as (i) the weighted average price at which the covered product was lawfully priced in transactions with the class of purchaser concerned on May 15, 1973, plus (ii) increased costs incurred between the month of measurement and May 1973. Class of purchaser means purchasers to whom a person has charged a comparable price for comparable property or service pursuant to customary price differentials between those purchasers and other purchasers. 10 C.F.R. § 212.31.
B. The Gulf Proposed Remedial Order
The DOEs OSC issued a PRO to Gulf, which alleged that the firm had violated the petroleum price regulations in connection with its calculation of the May 15, 1973 selling price to its unbranded jobbers outside of the northern California area. Specifically, the OSC found that Gulf did not place these customers in the most similar gasoline class of purchaser in existence on May 15, 1973, but instead created new classes of purchaser that were not in existence on that date, a violation of 10 C.F.R. §§ 212.31 and 212.83. The OSC further found that Gulfs creation of new classes of purchaser resulted in the computation of improperly high May 15, 1973 selling prices, which were used in Gulfs calculations of its maximum allowable selling prices for five unbranded jobbers, including Tesoro. In the PRO, the OSC stated that the existing classes of purchaser most similar to these unbranded jobbers were the branded classes of purchaser actually occupied by those jobbers on May 15, 1973.(3)
In the PRO, the OSC requested that the DOE issue a final Remedial Order requiring Gulf to refund to Tesoro $808,883.69, plus interest. (4) This amount was computed by calculating the difference between the May 15, 1973 selling price computed by Gulf, and the May 15, 1973 selling price determined by OSC. The OSC selling prices were the actual prices charged by Gulf to the newly- converted jobbers on May 15, 1973. In order to reach the total overcharge amount, the OSC multiplied the per-gallon price differential by the volumes of gasoline Gulf sold to Tesoro.
C. The F.O. Fletcher, Inc. Litigation
In October 1977, Fletcher instituted an action against Gulf under Section 210 of the Economic Stabilization Act of 1970 (ESA), 12 U.S.C. § 1904, note. F.O. Fletcher, Inc. v. Gulf Oil Corp., No. 77-849-PA (D. Ore. July 21, 1983)(Fletcher). This lawsuit sought a refund of overcharges that Fletcher alleged resulted from Gulfs incorrect class of purchaser decisions discussed above. In June 1983, after a trial on the merits, the court found in part that Gulf improperly created a new class of purchaser for Tesoro, and that Gulfs improper May 15, 1973 selling price calculations resulted in overcharges to Fletcher of $790,000.
Gulf appealed to the Temporary Emergency Court of Appeals (TECA) the courts judgment awarding damages to Fletcher. Gulf Oil Corp. v. Richard W. Dyke, 3 Fed. Energy Guidelines ¶ 26,485 (Temp. Emer. Ct. App. 1984). (5) TECA dismissed Fletchers case on the grounds that (i) it was barred by the applicable statute of limitations and (ii) for purposes of Section 210 of the ESA, Fletcher was an indirect purchaser from Gulf and that it therefore had no standing to sue for overcharges under that Section. (6) Accordingly, Fletcher received no award for damages through the district court litigation.
III. Analysis of Fletchers Subpart V Gulf Refund Claim
A. Overcharges to Fletcher
Given this background, we will next consider whether Fletcher has sufficiently shown, for purposes of this refund proceeding, that it experienced an overcharge beyond the volumetric level, and whether it has provided a reasonable demonstration of what that non- volumetric overcharge amounted to.
As a general matter, in assessing whether an above-volumetric overcharge occurred for purposes of granting a Subpart V refund, we do not need the same level of proof as that necessary to establish that a regulatory violation actually took place. In this forum, we do not adjudicate whether a regulatory violation actually took place. Standard Oil Co. (Indiana)/Army and Air Force Exchange Service, 12 DOE ¶ 85,015 (1984). Therefore, in establishing that it experienced a non-volumetric overcharge, a refund applicant must generally provide colorable evidence to support its refund claim. See Union Texas Petroleum Corp./Petroleum Supply, Inc., 14 DOE ¶ 85,163 (1986). The applicant must present sufficient evidence to reasonably establish that its claim is well-founded. OKC Corp./Town & Country Markets, Inc., 12 DOE ¶ 85,094 (1984).
We find that the information supplied by Fletcher satisfies this standard. As discussed above, the DOEs Office of Special Counsel believed that Gulf had placed Tesoro, Fletchers supplier of Gulf product, in an improper class of purchaser. The United States District Court for the District of Oregon reached a similar conclusion. According to the OSC, Gulfs actions resulted in overcharges of $808,883 to Tesoro. Thus, we find that for purposes of this refund proceeding, Fletcher has established that a non- volumetric overcharge occurred in Gulfs sales to Tesoro.
However, as stated above, Fletcher did not buy product directly from Gulf. Rather, it purchased gasoline through Tesoro, under a three party arrangement with Gulf and Tesoro. Thus, we must have reasonable evidence that Tesoro passed through the Gulf overcharge to Fletcher. We find that sufficient evidence exists in this case. The record indicates that Gulf delivered gasoline to Fletcher directly, but invoiced Tesoro. Tesoro, in turn, invoiced Fletcher with a fixed markup per gallon. In a previous case we found that this arrangement passed through the entire purchase costs including alleged Gulf overcharges to Fletcher. Gulf Oil Corp./Fletcher Oil Co., 14 DOE ¶ 85,497 (1986). Thus, even though the OSC PRO found that Tesoro experienced the Gulf overcharges and made no direct finding with respect to Fletcher, and even though Fletcher was an indirect purchaser of Gulf product, there is a sufficient demonstration that it was Fletcher that ultimately incurred the Gulf overcharges to Tesoro. Accordingly, we find that Fletcher experienced Gulf overcharges in connection with its indirect purchases of Gulf product.
We must next consider the amount of that overcharge. Fletcher calculates the per gallon overcharge that it incurred in the following way. It notes that the OSCs PRO found Gulfs overcharges to Tesoro amounted to $808,883.69. However, Fletcher purchased only approximately 67 percent of the product that Tesoro purchased from Gulf. Gulf Oil Corp./Tesoro Petroleum Corp. 14 DOE ¶ 85,497 (1986). See also September 17, 1997 Letter. Therefore, of the $808,883.69 of Gulf overcharges to Tesoro, only 67 percent, or $541,952, would have been passed through to Fletcher. As stated above, Fletcher indicates that it purchased 30,780,616 gallons of product from Gulf through Tesoro during the Tesoro refund period. This amounts to a per gallon overcharge of $.01761 ($541,952/30,780,616 = $.01761).Fletcher suggests that this per gallon overcharge amount be averaged with a per gallon overcharge of $.02567. Fletcher claims this to be the implied per gallon overcharge in the Fletcher United States district court litigation. The firm reaches this $.02567 figure by dividing the $790,000 overcharge in Fletcher by its own purchases of Gulf/Tesoro product, 30,780,616 gallons. We see no basis for adopting the averaging approach recommended by Fletcher. The court in Fletcher concluded that there was a $790,000 overcharge based on its own calculation of Gulfs per gallon overcharge to Tesoro, multiplied by a stipulated volume of product that Gulf purportedly sold. Fletcher, slip op. at 20. The basis for that stipulation was not made part of the record in this case. We do not know how the volume of product was established, nor do we know what it represents.(7) We are not inclined to include the $.02567 per gallon overcharge in our computation, when it is derived from this unknown stipulated gallonage figure. Accordingly, we will adopt the $.01761 overcharge amount, based on the OSC proceeding.
B. Fletchers Showing of Injury
Fletcher claims that the injury it experienced falls between 74 percent and 90 percent of the $541,952 overcharge. September 17, 1997 Letter at 7. To receive a refund at this level, Fletcher, a reseller-retailer of petroleum products, must demonstrate injury. As we discussed above, this involves a showing of banks of unrecouped costs, as well as some other demonstration that the applicant was unable to pass through overcharges without incurring adverse competitive consequences. Fletcher submitted some bank information, as well as information purporting to demonstrate that its margins and volume of gasoline sold decreased during the January 1974 through January 1977 refund period. It has also offered an injury showing that it calls the Palo Pinto test.
After reviewing the injury information submitted in this case, we find that the firm has not shown that it experienced an injury beyond the presumptive level discussed earlier. Specifically, we find inadequate the information Fletcher submitted to establish injury.
1. Demonstration of Banks of Unrecouped Costs
As an initial matter, we have reviewed the quick bank information supplied by Fletcher and find it unpersuasive. The calculation of that bank is based on a purported May 15, 1973 margin of $.041185 per gallon. Fletcher states that this figure is derived from a February 1974 Internal Revenue Service audit of the firm. Exhibit A of Fletchers December 8, 1994 submission indicates some of the findings in that audit. It shows an undated, weighted average markup for gasoline for Fletcher of $.0398 per gallon. It also shows an undated combined Premium weighted average markup of $.042745. It is not clear how Fletcher calculated the $.041185 markup on which its entire quick bank is based. The average of the gasoline and combined premium markups does not equal $.041185. While a weighted average might be appropriate, it is not clear that the $.041185 figure is a weighted average. Further, Exhibit A does not state that the margins are for May 15, 1973. Without a clear understanding of the firms May 15, 1973 weighted average margin and the product costs and selling prices that establish that margin, we cannot draw any conclusions about the status of the firms banks of unrecouped costs.
2. Second Step of the Injury Showing
We also are not convinced by the second step of the injury showing that Fletcher has offered. Fletcher specifically stated that it did not wish to rely on the commonly used competitive disadvantage analysis. September 17, 1997 Letter at 5. Instead, it has offered what it has called a Palo Pinto approach. It also seeks to support its injury claim by demonstrating that it experienced depressed margins and sales volumes during the refund period. Id. We stated in Gulf that these alternative methods might be possible ways of showing injury. Gulf, 16 DOE at 88,740. Overall, we find that none of the showings establishes reasonable support for Fletchers claim in the instant case.
a. Demonstration of Depressed Margins
Fletcher first claims that it experienced depressed margins during the Tesoro refund period. It has calculated several margins for the firm. It first cites the average of its 1974 monthly margins for regular gasoline. That average is $.037177 per gallon. December 8, 1994 Letter, Exhibit K. It has also calculated a margin for the firm on September 1, 1971 as $.03965 per gallon. December 8, 1994 Letter, Exhibit G. As discussed above, Fletcher further points to a firm-wide regular gasoline margin of $.0398, compiled in the Internal Revenue Service compliance audit of Fletcher conducted in February 1974. December 8, 1994 Letter, Exhibit A. However, the exhibit does not indicate the date for which that margin is applicable.
As an initial matter, we are not persuaded that any of these margins was correctly calculated. We are not willing to accept them without some supporting documentation. Moreover, we are not convinced that any of these margins is even realistic for the firm. As a general rule, in selecting an appropriate margin for comparison purposes, a firm is expected to use a reasonable time frame, such as one year. Marathon Petroleum Co./Pilot Oil Corp., 17 DOE ¶ 85,291 (1988). It should also select a time frame that is not within the time period affected by the overcharges, but one that shows the firms operations during a more normal operating period for the firm. Id. at 88,582.
In this case, Fletcher has used a margin for the year 1974, which was part of the very period for which it seeks a refund. Since this is a purportedly anomalous period for the firm, we suspect its reliability. The only other comparative margin information Fletcher provided was for September 1, 1971 and the undated IRS margin. Margin data for a single day is not especially persuasive. Id. The undated margin information is also not particularly useful.
While we are not totally persuaded as to the individual usefulness of any of these three margins, $.037177, $.03965 and $.0398, they might nevertheless represent a normal margin range for the firm. Accordingly, we performed an analysis using those figures as benchmarks.
Exhibit B of the December 8, 1994 Letter confirms that Fletcher rarely attained those margin levels during the Tesoro refund period, January 1974 through January 1977. However, this Exhibit also shows that the firm did not achieve that margin level even after it ceased purchasing Gulf product from Tesoro. In fact, it did not receive a margin level of at least $.037177 until March 1979. December 8, 1994 Letter, Exhibit B. Thus, more than two years after it stopped purchasing Gulf product through Tesoro, it had still not resumed selling product at its so-called historical margin. This data therefore does not persuade us that Fletchers failure to achieve that margin was caused by or related to overcharges in connection with its Gulf/Tesoro purchases.
b. Demonstration of Depressed Sales Volumes
Fletcher also claims that its volumes of gasoline sales were dropping during the refund period, and that this constitutes a further demonstration that it was injured by the purchases of the Gulf/Tesoro product. December 8, 1994 Letter, Exhibits J and B. The firm calculated an average monthly volume of 1,964,578 gallons. To derive this average monthly volume, it divided its total 1973 volume of 23,574,940 gallons of gasoline by 12.
Accepting that 1.964 million gallon figure as reasonable for purposes of this analysis, we nevertheless cannot find that Fletchers sales volumes were depressed as a result of the Gulf/Tesoro purchases. During the 37-month Tesoro refund period, Fletchers sales dipped below the 1.964 million gallon level only 7 times. One of those times was during November 1974, when it sold 1,867,209 gallons. We find this rather minimal reduction of less than 5 percent to be insignificant. In analyzing the remaining six months during which Fletcher sold less than 1.9 million gallons of gasoline, we noted that in no month did sales fall below 1,572,554 gallons. Thus, the six-month reduction in volumes, while not insignificant, was hardly drastic, when considered in terms of the firms overall operations.
Moreover, all the reduced sales occurred during the months of December through February. January 29, 1998 Letter, Revised Exhibit J. Fletcher has admitted that there were seasonal fluctuations in its sales, and the winter months seem to be generally the months that generated lower gasoline sales for the firm. December 8, 1994 Letter at 6. See also December 8, 1994 Letter, Exhibit B. Thus, we believe that the six months in which Fletchers sales seemed to be somewhat reduced constituted normal periods of sales fluctuations for the firm. They do not seem to be related to Gulf/Tesoro overcharges.
Moreover, in the 30 remaining months of the Tesoro refund period, Fletchers gasoline sales were almost always above the 2 million gallon level, and in 14 months of the Tesoro refund period, sales ranged between 3 and 4 million gallons. This is significantly greater than the 1.9 million gallon average that Fletcher says represents a historical volume for the firm. Thus, based on this data, we fail to see any harm to the firms sales volumes resulting from the alleged Gulf/Tesoro overcharges. Accordingly, we find that Fletcher has not made a showing of injury with this information.
c. The Palo Pinto Approach
In a number of prior cases in which an applicant sought to prove injury we have used a measure of injury that we called a competitive disadvantage test. E.g., Atlantic Richfield Co./Arrow Enterprises, Inc., 22 DOE ¶ 85,058 (1992). This methodology compares the prices that the applicant paid for product to the allegedly overcharging firm with the likely prices paid by its competitors to their own suppliers. For comparison prices in most cases we used the prices set forth in Platts Oil Price Handbook (Platts).
In this case, Fletcher has specifically stated that it does not wish to make a competitive disadvantage showing. September 17, 1997 Letter. Instead, it states that it wishes to use a Palo Pinto analysis. The Palo Pinto analysis offered by Fletcher compares the prices that it paid Gulf/Tesoro with those of Phillips Petroleum Company and Texaco Inc. Fletcher states that in its market area, these two suppliers had a larger market share than Powerine Oil Company, which was the price source adopted in Platts.
This methodology falls short in this case. As an initial matter, Fletcher is mistaken in its reliance on the existence of a so- called Palo Pinto analysis. In fact, Palo Pinto is simply the name of an early refund case in which we used a competitive disadvantage analysis. Palo Pinto Oil & Gas/Gulf Oil Corp., 10 DOE ¶ 85,049 (1983). We used that type of analysis to consider whether a purchaser of natural gas liquids had been injured. The prices that we used for comparison purposes were developed by the DOEs Energy Information Administration. There is, however, no separate Palo Pinto analysis, such as that urged by Fletcher. Palo Pinto does not set a precedent that it is appropriate to abandon Platts prices in a case involving gasoline overcharges.
In this case, the applicant has refused to provide us with a competitive disadvantage analysis using the Platts data. September 17, 1997 Letter. We are not convinced that the Platts comparison prices are necessarily unreliable, even if the source of that data represents a smaller market share. We have been committed to using Platts data, and this method has been strongly affirmed by the Temporary Emergency Court of Appeals. Behm Family Corp. v. DOE, 3 Fed. Energy Guidelines, ¶ 26,633 (Temp. Emer. Ct. App. 1990). We see no reason to abandon that long-established approach in this case.
Accordingly, the information submitted by Fletcher in this case does not persuade us that it experienced an injury in its purchases from Gulf/Tesoro.
C. Calculation of Fletchers Refund
If, in attempting to show injury, a claimant submits information demonstrating that it was not injured by alleged overcharges, it may then not receive a refund at the presumptive level. True Companies/V-1 Oil Co., 20 DOE ¶ 85,523 (1990). However, this is not the case with respect to the Fletcher application. Although the firm has not substantiated its position that it was injured beyond the presumptive level, the record in this matter does not necessarily show that the firm was not injured as a result of its purchases of Gulf product. We therefore find that the firm should receive a refund under the applicable presumption of injury. Marathon Petroleum Co./Independent Oil & Tire Co., 22 DOE ¶ 85,020 (1990).
As discussed above, the firm has purchased 30,780,616 gallons of Gulf product from Tesoro in which it incurred an overcharge above the volumetric rate. (8) December 8, 1994 Letter at 3. We found above that for purposes of this proceeding, a reasonable per gallon overcharge rate on the gallonage sold by Gulf to Fletcher through Tesoro was $.01761. Accordingly, we will use that figure to calculate Fletchers refund. Fletchers allocable refund share in this proceeding is $542,046 (30,780,616 x $.01761 = $542,046). (9)
However, since, as discussed above, the firm has failed to establish injury in this case, it will be limited to the applicable injury presumption. As discussed above, its refund is limited to the greater of 40 percent of its allocable share up to a maximum of $50,000. Accordingly, Fletcher will receive a refund of $50,000, plus interest. Interest in the Gulf refund proceeding is granted at the rate of 95.3 percent of the total refund. (10)Therefore, Fletcher is entitled to interest of $47,650 (.953 x $50,000 = $47,650). (11) The claimant's total refund is therefore $97,650.
It Is Therefore Ordered That:
(1) The Application for Refund filed by F.O. Fletcher, Inc. in the Gulf Oil Corporation refund proceeding (Case No. RF300-6619) is hereby granted as set forth in Paragraph (2) below.
(2) The Director of Special Accounts and Payroll, Office of Departmental Accounting and Financial Systems Development, Office of the Controller of the Department of Energy shall take appropriate action to disburse a total of $97,650 from the DOE deposit fund escrow account maintained at the Department of the
Treasury and funded by Gulf Oil Corporation, Consent Order No. RGFA00001Z to:
F.O. Fletcher, Inc. OR
Bassman, Mitchell & Alfano, Chartered
Post Office Box 65511
Washington, D.C. 20035
(3) The determinations made in this Decision and Order are based upon the presumed validity of statements and documentary material submitted by the applicant. Any of these determinations may be revoked or modified at any time upon a determination that the basis underlying the Application for Refund is incorrect.
(4) This is a final Order of the Department of Energy.
George B. Breznay
Director
Office of Hearings and Appeals
Date: March 20, 1998
(1)1/ This amount was derived by dividing the fund received from Gulf allocable to refined products ($42,499,566) by the estimated volume of refined products sold by Gulf from August 1973 through the date of decontrol of the relevant product (66,387,563,569 gallons). Id.
(2)The firm states that it made purchases of Gulf product of approximately 5.9 million gallons on which it did not experience a disproportionate overcharge. It requests a refund based on the volumetric approach for that volume.
(3)In 1974, Gulf converted some of its branded jobbers to unbranded status.
(4)No final Remedial Order was issued to Gulf in this matter, due to the settlement of the Gulf enforcement issues that was referred to above.
(5)The Fletcher litigation was consolidated with two other actions, one instituted by Richard Dyke, and the other by Colvin Oil Company.
(6)We find that TECAs reasons for dismissing the Fletcher claim are inapplicable here. The claim in Fletcher was filed under Section 210 of the ESA. That Section provides a party with a private right to recover damages. However, the present refund monies were collected pursuant to Section 209 of ESA. That Section provided the DOE with authority to enforce the regulations controlling the price of crude oil and refined petroleum products. Palo Pinto Oil and Gas/Gulf Oil Corp., 10 DOE ¶ 85,049 at 88,243 (1983). See Consolidated Edison Co. of New York v. OLeary, 117 F.3d 538, 540 (Fed. Cir. 1997), cert. denied, 66 U.S.L.W. 3554 (February 24, 1998). Our authority to disburse these funds is set forth in 10 C.F.R. Part 205, Subpart V. Thus, the proscription noted by TECA with respect to the unavailability of damages to indirect purchasers pursuant to Section 210 of the ESA is inapplicable to the instant case, which is within the purview of Section 209 of the ESA. Further, there is no statute of limitations applicable here.
(7)For example, among other things, it is not clear whether the stipulated volume figure represented the gallonage that Gulf sold to Tesoro, or the gallonage Tesoro sold to Fletcher. As stated above, Fletcher purchased only 67 percent of the Gulf/Tesoro gallonage. Failure to take this fact into account could significantly overstate the total overcharge to Fletcher found by the court ($790,000) and therefore the per gallon overcharge that the firm calculates is implied in the Fletcher litigation.
(8)Prior to 1974, Fletcher purchased 3,337,328 gallons of Gulf product through Tesoro that was not subject to the overcharges discussed above. It also purchased 1,813,432 gallons of product directly from Gulf. Since Fletcher cannot receive a refund greater than $50,000 without a showing of injury, we will not consider whether it might be entitled to a volumetric refund for these additional gallons.
(9)The difference between Fletchers $542,046 allocable share, calculated here, and its $541,952 allocable share, calculated at page 7 above, is due to rounding off the $.01761 per gallon overcharge.
(10)The Gulf volumetric refund rate is $.00064 per gallon, and the current Gulf interest volumetric rate is $.00061 per gallon. Thus, the interest volumetric rate is 95.3 percent of the Gulf volumetric refund rate (.00061/.00064 = .953).
(11)Fletcher contends that it should be granted interest on its refund for the period prior to the date of the Gulf settlement. December 8, 1994 Letter at 7. It cites Texaco, Inc./J & J Oil Co. Inc., 24 DOE ¶ 85,076 (1994), for that proposition. That case is inapplicable here. There is no precedent for calculating interest in that manner in the Gulf proceeding. Accordingly, Fletchers interest will be granted at the same relative level as other applicants in the Gulf refund proceeding. It would be entirely inequitable to do otherwise.