       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                RALPH M. MALONE,
                    Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
             ______________________

                      2014-3211
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DE-0831-14-0311-I-1.
                ______________________

              Decided: February 4, 2015
               ______________________

   RALPH M. MALONE, San Tan Valley, AZ, pro se.

    TREYER AUSTIN MASON-GALE, Merit Systems Protec-
tion Board, Washington, DC, for respondent. Also repre-
sented by BRYAN G. POLISUK.
                ______________________

   Before PROST, Chief Judge, NEWMAN and BRYSON, Cir-
                     cuit Judges.
PER CURIAM.
2                                             MALONE   v. MSPB



     Petitioner Ralph Malone appeals a decision of the
Merit Systems Protection Board (“MSPB”) dismissing Mr.
Malone’s appeal for lack of jurisdiction. The MSPB found
that the Office of Personnel Management (“OPM”) had not
yet ruled on Mr. Malone’s motion for reconsideration of its
initial decision denying Mr. Malone’s application for a
redetermination of his retirement annuity, so there was
no appealable final decision from OPM. The MSPB also
found that OPM had not constructively denied Mr.
Malone a final decision. Because we agree that the MSPB
lacked jurisdiction over Mr. Malone’s appeal, we affirm.
                        DISCUSSION
    Whether the Board has jurisdiction to adjudicate a
case on appeal is a question of law, which we review de
novo. See Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995). Although we may review the Board’s
conclusion that it lacks jurisdiction, we are bound by the
administrative judge’s factual determinations “unless
those findings are not supported by substantial evidence.”
Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.
Cir. 1998).
    The MSPB has jurisdiction over appeals from “final
decision[s] of the . . . Office of Personnel Management”
“affecting the rights or interests of an individual . . . .” 5
C.F.R. § 831.110; 5 U.S.C. § 8347(d)(1). Decisions of the
OPM are final when they are rendered on reconsideration
or expressly issued as final decisions. 5 C.F.R. § 831.109.
    However, an exception to the final decision require-
ment exists where OPM has constructively denied an
individual the opportunity to receive a final decision.
Typically, constructive denial occurs where OPM neglects
to inform the petitioner of the right to seek reconsidera-
tion of a retirement application decision, see Richards v.
Office of Pers. Mgmt., 29 M.S.P.R. 310, 312 (1985), im-
properly denies an opportunity for reconsideration, see
Phillips v. Veterans Admin., 21 M.S.P.R. 409, 412 (1984),
MALONE   v. MSPB                                           3



or fails to issue a decision within a reasonable time, see
Okello v. Office of Pers. Mgmt., 120 M.S.P.R. 498, 502–504
(2014). In determining whether there has been construc-
tive denial of a final decision, the MSPB considers OPM’s
express representations regarding the allegedly forthcom-
ing decision, as well as a litigant’s diligence in requesting
a decision. Id. at 503.
     Turning to the facts of this case, after OPM issued an
initial decision denying Mr. Malone’s application, Mr.
Malone requested reconsideration on July 15, 2013. Mr.
Malone does not dispute—and did not dispute at the
MSPB—that OPM has not rendered an opinion on his
motion for reconsideration. It is also undisputed that
OPM properly informed Mr. Malone of his right to request
reconsideration and that OPM did not improperly deny
Mr. Malone an opportunity for reconsideration. There-
fore, the only issue presented by this appeal is whether
OPM constructively denied Mr. Malone a final decision by
failing to issue a decision on Mr. Malone’s reconsideration
motion within a reasonable time.
     We find that Mr. Malone has not been constructively
denied a final decision. This case is most similar to Nava
v. Merit Systems Protection Board, No. 94-3424, 1994 WL
623989 (Fed. Cir. Nov. 10 1994). In Nava, the petitioner
“filed one request for reconsideration and waited approx-
imately five months before filing an appeal.” Id. at *1.
OPM also represented to the MSPB that it intended to
issue a final decision on the petitioner’s request for recon-
sideration. Id. This court affirmed the MSPB’s dismissal
for lack of jurisdiction. Id.
     Here, Mr. Malone requested reconsideration of OPM’s
initial decision and appealed to the MSPB after nine
months passed without a decision. The MSPB credited
OPM’s representations that it intended to issue a decision
on Mr. Malone’s request for reconsideration, and noted
that Mr. Malone had not inquired about the status of his
4                                           MALONE   v. MSPB



reconsideration request before filing an appeal. This
court has previously found that a sixteen-month delay did
not amount to a constructive denial of a final decision.
See McNeese v. Office of Pers. Mgmt., 61 M.S.P.B. 70, 74
(1994), aff’d, 40 F.3d 1250 (Fed. Cir. 1994). No other
circumstances indicate that OPM does not intend to issue
a final decision in Mr. Malone’s case. See Okello, 120
M.S.P.R. 498, 502–504 (finding that a six year pendency
with no decision despite petitioner’s diligence in seeking a
final decision was a constructive denial); Easter v. Office
of Pers. Mgmt., 102 M.S.P.R. 568, 571 (2006) (holding that
an eighteen-month delay with no acknowledgment of
petitioner’s application was constructive denial). Mr.
Malone may appeal the substantive merits of his case
once OPM issues a final decision. For the time being,
though, we affirm the MSPB’s dismissal of Mr. Malone’s
appeal for lack of jurisdiction.
                       AFFIRMED
                          COSTS
    Each party shall bear its own costs.
