In Fundicao Tupy, S.A. v. United State, 11 CIT ___, 669 F. Supp. 437 (1987) (Tupy I), a unanimous three-judge panel held that a party that failed to avail itself of the administrative review procedure was unable to establish irreparable harm necessary to obtain injunctive relief. The Tupy I court reasoned: For the subsequent history of this case, see NTN Bearing Corp. of Am. v. United States, 12 CIT ___, 701 F. Supp. 226, 227 n. 3 (1988). Had plaintiffs chosen to incur the expense of participating in an administrative review, the opportunity to obtain judicial review as to entries covered by that administrative proceeding could be protected.
On the other hand, such injunctive relief has been denied in similar situations. See eg. Cambridge Lee Industries, Inc. v. United States, Slip Op. 89-145, 1989 WL 125739 (Oct. 18, 1989); NTN Bearing Corp. v. United States, 12 CIT ___, 701 F. Supp. 226 (1988), appeal dismissed as moot, 884 F.2d 1397 (Fed. Cir. 1989); Fundicao Tupy S.A. v. United States, 11 CIT ___, 669 F. Supp. 437 (1987), appeal dismissed as moot, 841 F.2d 1101 (Fed. Cir. 1988). Defendant-intervenor is incorrect in likening this matter to Fabricas El Carmen, S.A., De C.V. v. United States, 12 CIT ___, 680 F. Supp. 1577 (1988) and Agrexco Agricultural Export Co., Ltd., et al. v. United States, Slip Op. 88-052, 1988 WL 43902 (May 4, 1988) as the motions at issue in those cases involved attempts to direct actions in ongoing administrative reviews not before the court.
See Plaintiff's Brief at 16; Id., Exhibit C at 2. NTN Bearing Corp. of America v. United States, 12 CIT, ___, 701 F. Supp. 226 (1988), appeal docketed, No. 89-1121 (Fed. Cir. Nov. 30, 1988), follows the rationale articulated in Fundicao Tupy, whereas Ipsco, Inc. v. United States, 12 CIT, ___, 692 F. Supp. 1368 (1988), and Sonco Steel Tube Div. v. United States, 12 CIT ___, 698 F. Supp. 927 (1988) adopt the Oki reasoning. The Court's bifurcated authority on this matter is currently the subject of appeal in the Court of Appeals for the Federal Circuit.