                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 1, 2009
                             No. 09-10772                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 08-00655-CV-UWC-S

CSX TRANSPORTATION, INC.,


                                                               Plaintiff-Appellant,

                                  versus

ALABAMA DEPARTMENT OF REVENUE,
TIM RUSSELL, Commissioner of the Alabama
Department of Revenue,

                                                         Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                           (September 1, 2009)

Before BLACK, BARKETT, and HILL, Circuit Judges.
PER CURIAM:

       CSX Transportation, Inc. (CSXT) appeals the one-page order of the district

court dated December 16, 2008, dissolving its preliminary injunction from the

imposition of Alabama’s sales and use tax on diesel fuel. The district court sua

sponte dismissed CSXT’s case on the basis that Norfolk Southern Railway Co. v.

Alabama Dept. of Rev., 550 F.3d 1306 (11th Cir. 2008) was dispositive.

       CSXT asserts that the sales and use tax on diesel fuel discriminates against

railroad companies in violation of Section 306(1)(d) of the Railroad Revitalization

and Regulatory Reform Act of 1976, 49 U.S.C. § 11501(b)(4) (Section 306).

CSXT concedes that the Norfolk Southern panel considered an identical challenge

by the Norfolk Southern railroad to the sales and use tax on railroad diesel fuel

under Section 306, and ruled in favor of the Alabama revenue department.

       CSXT further concedes that the three-judge panel assigned to hear this

appeal is bound by the panel’s decision in Norfolk Southern.1 We agree. We

affirm the judgment of the district court. See United States v. Archer, 531 F.3d

1347, 1352 (11th Cir. 2008).

       AFFIRMED.



       1
         CSXT filed a petition for hearing en banc of this case, pursuant to Rule 35 of the
Federal Rules of Appellate Procedure. No judge in regular service in this court requested that
the court be polled on hearing en banc; the petition for hearing en banc has been denied.

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