
    CLINTWOOD ELKHORN MINING COMPANY, Gatliff Coal Company, and Premier Elkhorn Coal Company, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Cross-Appellant.
    Nos. 2004-5155, 2004-5156.
    United States Court of Appeals, Federal Circuit.
    Dec. 4, 2008.
    
      Before NEWMAN, GAJARSA, and LINN, Circuit Judges.
   ORDER

NEWMAN, Circuit Judge.

The Supreme Court in United States v. Clintwood Elkhorn Mining Co., — U.S. -, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008), reversed the judgment of this court, reported at 473 F.3d 1373 (Fed.Cir.2007). The Court held that the taxpayer seeking refund of the unlawfully assessed Export Tax must first file an administrative claim with the Internal Revenue Service, and that such filing must be made within the three-year time limit set in the Internal Revenue Code. This court had endorsed that portion of the ruling of the Court of Federal Claims that allowed a claim for tax refund under the rules and time limitations of the Tucker Act.

ACCORDINGLY, IT IS ORDERED THAT

1. The judgment of this court is vacated and the mandate, issued on May 4, 2007, is recalled.

2. The case is remanded to the Court of Federal Claims for entry of a revised judgment consistent with the decision of the Supreme Court.

3. The mandate will issue on December 15, 2008.  