Niles no longer operated any businesses or had any employees. Also, he states that he does not intend to resume any business operation in the future. Summary judgment pursuant to Rule 56, Fed. R. Civil P., is properly granted only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The moving party has the burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case.
All justifiable inferences are to be drawn in favor of the non-movant party.
In this case, there is no genuine issue of material fact as to the Commission's jurisdiction. OSHA's willful citation was not issued until September 20, 1995. Niles states that he permanently out of business and does not intend to re-enter business in the future. Niles' motion is supported by affidavits attesting to the dismissal of employees, sale of the business and equipment, and his intention not to re-enter the business. The Secretary submitted no rebuttal evidence disputing these facts.