ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

(ECF No. 12)

ERICA P. GROSJEAN, Magistrate Judge.

On June 25, 2018, Plaintiff, Miguel Sanchez, appearing pro se, initiated this action seeking review of the denial of Social Security Disability and/or Supplemental Security Income benefits. (ECF No. 1.) Defendant, the Commissioner of Social Security, moves for dismissal of the action for lack of jurisdiction. (ECF No. 12.) On February 1, 2019, the Court entered an order directing Plaintiff to file his response to the motion to dismiss, if any, within fourteen days. (ECF No. 13.) More than fourteen days have passed and Plaintiff has not filed a response. For the reasons discussed below, the Court grants the motion to dismiss and dismisses this action for lack of subject matter jurisdiction.

I. LEGAL STANDARD

Dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is appropriate if the complaint, considered in its entirety, fails to allege facts on its face that are sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008). A defendant can challenge subject matter jurisdiction in one of two ways—through a facial attack or a factual attack. A "facial' attack "accepts the truth of the plaintiff's allegations but asserts that they are `insufficient on their face to invoke federal jurisdiction.'" Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). In contrast, a "factual" attack "contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings." Id.

"When the defendant raises a factual attack, the plaintiff must support [his] jurisdictional allegations with `competent proof,' under the same evidentiary standard that governs in the summary judgment context." Id. "The plaintiff bears the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction has been met." Id. If the existence of subject matter jurisdiction turns on disputed factual issues, the court may resolve those factual disputes itself, unless those factual disputes are "intertwined with an element of the merits of the plaintiff's claim." Id. at 1121-22 & n.3.

II. DISCUSSION

A plaintiff may obtain judicial review of a "final decision of the Commissioner of Social Security made after a hearing to which [the plaintiff] was a party." 42 U.S.C. § 405(g) (emphasis added); see Califano v. Sanders, 430 U.S. 99, 108 (1977) ("This provision clearly limits judicial review to a particular type of agency action, a `final decision of the Secretary made after a hearing.'").

Here, the undisputed information provided to the Court by Defendant demonstrates the following: Plaintiff filed an application for disability benefits under Titles II and XVI of the Social Security Act on April 15, 2015. (ECF No. 12-1 at 4-17, Exs. 1-2.) The Social Security Administration denied Plaintiff's application. (ECF No. 12-1 at 19-28, Exs.3-4.) On November 23, 2015, Plaintiff requested a hearing before an administrative law judge ("ALJ"). (ECF No. 12-1 at 29-34, Ex. 5.) Plaintiff and his representative withdrew that request for hearing in correspondence to the Social Security Administration dated June 30, 2017. (ECF No. 12-1 at 35, Ex. 6.) An ALJ dismissed Plaintiff's request for hearing on July 18, 2017. (ECF No. 12-1 at 37-38, Ex. 7.) On September 20, 2017, Plaintiff filed a request for review of the ALJ's dismissal of his request for hearing. (ECF No. 12-1 at 42, Ex. 8.) The Appeals Council denied Plaintiff's request for review on April 12, 2018.1 (ECF No. 12-1 at 44, 46, Ex. 9.)

Based on this undisputed information, the Court finds that there is not a final decision of the Commissioner made after a hearing, and that the Court lacks subject matter jurisdiction over this action. See 42 U.S.C. § 405(g); Califano, 430 U.S. at 108 (section 405(g) "clearly limits judicial review to a particular type of agency action, a `final decision of the Secretary made after a hearing'").

Accordingly,

IT IS ORDERED that Defendant's Motion to Dismiss (ECF No. 12) is granted. This action is dismissed for lack of subject matter jurisdiction.

The Clerk of the Court is respectfully directed to close this case.

IT IS SO ORDERED.