                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JAN 24 2000
                                      TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk

 ROBERT F. KIRBY, MICHAEL J.
 MASHAW,

           Plaintiffs - Appellants,                       No. 98-2341
 vs.                                               (D.C. No. CIV-97-799-LCS)
                                                            (D.N.M.)
 CYPRUS AMAX MINERALS
 COMPANY,

           Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges. **


                Plaintiffs Robert F. Kirby, et al. (“employees”) appeal from the

district court’s grant of summary judgment in favor of defendant Cyprus Amax

Minerals Company (“Cyprus Amax”) on their claim that they were owed damages

under the WARN Act. Because the parties are familiar with the facts of this case,


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
we need only refer to those pertinent to our analysis. We review the district

court’s grant of summary judgment de novo, viewing the evidence in the light

most favorable to the nonmoving party.      See Simms v. Oklahoma ex rel. Dep't of

Mental Health & Substance Abuse Servs.       , 165 F.3d 1321, 1326 (10th Cir.1999).

       In 1986, Amax Potash Corporation, a wholly-owned subsidiary of Amax,

Inc., began a potash mining operation under a federal government lease. In

February of 1992, Amax Inc. sold 100% of the stock of Amax Potash to Horizon

Gold. The potash lease, which had been assigned to Amax Potash by Amax Inc.,

was one of the assets. After acquisition, Horizon Gold changed the name of

Amax Potash to Horizon Potash, Inc., but the name of the lesee was never

changed on the lease. It remained “Amax Potash Corporation.”

       From February 1992, Horizon Potash was the employer of all mine

employees. No Amax entity owned any stock or assets of any Horizon entity, nor

did they share directors. In July 1993, Horizon Potash permanently closed the

mine and laid off all mine workers. The workers were not given 60 days’ notice

of the closing, in violation of the   Worker Adjustment and Retraining Notification

(WARN) Act, 29 U.S.C. § 2101 -2109 . Horizon Potash and its parent company

are now bankrupt; the employees seek WARN Act damages from Cyprus Amax,

the successor after merger to the former parent company, Amax, Inc    .

       The WARN Act imposes liability on “any employer” that fails to give sixty


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days notice of an upcoming plant closing or layoff. 29 U.S.C. § 2104. Although

Cyprus Amax was admittedly not the employer at the time the mine closed, the

employees attempt to rely on the language of the federal lease. The lease

provided that Amax Potash would “pay all wages due miners and employees . . .

at least twice each month in lawful money of the United States.” Because the

named lease was never changed on BLM records, the employees contend that

Amax Potash is still liable for wages, and that WARN Act damages constitute

wages under the lease. This argument is not persuasive.

       Quite simply, the WARN Act applies only to employers. Cyprus Amax

cannot be considered an employer under the Act, and therefore, cannot be liable

to the employees. Congress clearly did not intend to hold a former owner of an

entity liable for the inaction of a purchaser.      See 29 U.S.C. § 2101(b)(1): (“After

the effective date of the sale of part or all of an employer’s business, the

purchaser shall be responsible for providing notice . . . .”);      See also 20 C.F.R. §

639.4(c) (“The buyer is responsible for providing notice of any plant closing or

mass layoff that takes place [after the effective date of the sale].”).      Imposing

damages on a party that had no responsibility or capacity to give notice would

serve no statutory purpose, especially because § 2104 is “designed to penalize the

wrongdoing employer, [and] deter future violations . . . .”         Carpenters Dist.

Council v. Dillard Dept. Stores, Inc.     , 15 F.3d 1275, 1285 (5th Cir. 1994). A non-


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employer cannot be liable for WARN Act damages. AFFIRMED.




                                 Entered for the Court


                                 Paul J. Kelly, Jr.
                                 Circuit Judge




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