concurring.
The Parole Commission denied parole to Erasmo Gambino on the ground that he was identified as a member of an organized crime family. The majority found that in so holding, the Parole Commission abused its discretion. The majority determined that the Commission’s conclusion was not supported by sufficient evidence, indeed that there was no rational basis to support the Commission’s conclusion. I would, however, not reach the merits of the Parole Commission’s decision, as the majority did, because I find that two procedural errors occurred prior to any Commission decision which errors prejudiced Gambino’s right to a fair parole hearing. For this reason, I concur in the judgment of the Court as I, too, would reverse the judgment of the district court and remand for a new parole hearing.
Congress has charged the Parole Commission with conducting parole hearings and thereafter determining whether a given prisoner is eligible for parole. 18 U.S.C. § 4201 et seq. In order to ensure that a prisoner’s due process rights are respected throughout the parole determination, Congress both (a) codified certain procedural statutes to guide the Commission, e.g. 18 U.S.C. § 4206, and (b) authorized the Commission to promulgate rules and regulations to administer parole eligibility determinations in a fair manner. 18 U.S.C. § 4203(a)(1). The Commission, in response, established 28 C.F.R. §2 et seq. The Parole Commission’s handling of the Gambino parole hearing demonstrates a disregard of these rules and regulations, the sum total of which is a denial of Gambino’s due process rights.
First, Gambino did not receive an opportunity at his initial parole hearing to rebut allegations of organized crime until after the hearing examiner had ruled on Gambino’s parole eligibility. This action on the part of the Parole Commission constituted a violation of 28 C.F.R. § 2.531 by failing to provide a hearing complying with 28 C.F.R. § 2.19(c).2 Second, after the Hearing, the Commission may deny parole but it must *166explain with particularity the reason for the denial and include a summary of the information relied on in making this determination. Gambino was denied proper notice of the factual allegations supporting the Parole Commission’s determination that he was a member of La Cosa Nostra. The Commission violated 18 U.S.C. § 4206(c)3 when it did not inform Gambino of an essential piece of information upon which it relied when it determined that Gambino was a member of La Cosa Nostra.
Either of the these two errors is serious enough to warrant a reversal of the district court and a remand to the Parole Commission for a new parole hearing. Patterson v. Gunnell, 753 F.2d 253 (2d Cir.1985) (remanding for a new parole hearing upon finding of Commission’s failure to comply with § 2.19(c)’s notice provision); Marshall v. Lansing 839 F.2d 933, 943 (recognizing that setting aside the Commission’s action and remanding for a new hearing is appropriate where agency fails to comply with its own regulations) (3d Cir.1988). I address each of these errors in turn.
I. The Parole Hearing
The Parole Commission held a parole hearing for Erasmo Gambino on April 20, 1994. At this hearing the Hearing Examiner took into account information regarding Gambi-no’s alleged affiliation with La Cosa Nostra.4 Specifically the Examiner relied on a Pennsylvania Crime Commission Report and a Government Sentencing Memorandum for Gambino’s co-defendant Rosario Gambino, Gambino Pro Se Reply Br. at 11-13; Parole Hearing Uncertified Transcript (“Hearing Transcript”) at 13; Petitioner’s Supplemental Appendix (“PSA”) at 14.
There is no question that the Commission is entitled to consider the contents of these documents, but the Commission must provide a prisoner with notice that the information will be used as evidence to deny him parole and the prisoner must have an opportunity to respond to the evidence in the documents. § 2.19(c) (“[t]he Commission may take into account any substantial information available to it ... and any aggravating and mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond.”); Patterson v. Gunnell, 753 F.2d 253, 255 (2d Cir.1985) (holding that where the National Appeals Board had information unknown to prisoner and on which it relied, prisoner’s case had to be returned for a new parole hearing so that prisoner would not be “deprive[d] ... of a procedural protection guaranteed by the Commission’s regulations.”).
Furthermore, the opportunity to respond to the evidence in the documents must take place before the Examiner proffers his recommendation. Section 2.19(c) explains that after the prisoner has had an opportunity to respond to the evidence, if there exists a factual dispute, the Commission shall resolve it according to the preponderance of evidence. It is inconceivable that Congress intended this fact-finding to take place after a Hearing Examiner had made his determination to grant or deny parole.
The Commission did not comply with § 2.19(c) here.5 After an extensive discus*167sion about Gambino’s role in the offense of conviction and without mention of any of the evidence connecting Gambino to La Cosa Nostra, the ultimate basis for the denial of parole, the Examiner adjourned the hearing. Gambino Pro Se Reply Br. at 12; Hearing Transcript at 11; PSA at 12. When the Examiner called Gambino back into the room, the Examiner read his recommendation that Gambino be denied parole. Id. The Examiner explained that the reason for the denial was that Gambino had been “identified by the government as being a member of organized crime.” Id. The Examiner further explained that the bases for his conclusion were the Pennsylvania Crime Commission Report and the Government’s Sentencing Memorandum.
The explanation for the denial of parole (at the conclusion of the hearing) was the first mention to Gambino of this evidence. Gam-bino was not given notice that this evidence would be used against him and he was not given an opportunity to respond prior to the Examiner’s recommendation. The fact that the issue was discussed after the Examiner made his decision is not sufficient to prevent a violation of 28 U.S.C. § 2.19(c). As the Commissioner asserts, “the record reveal[s] that appellant’s counsel spoke to [the issue of Gambino’s organized crime ties] in the hearing” reiterating the district court holding. Parole Comm’n Reply Br. at 5. The consideration of the evidence must, however, take place before the Hearing Examiner has decided what the outcome will be and has made his recommendation. An opportunity to develop one’s position on the merits, i.e., deny one’s involvement with organized crime, after the Examiner has made up his mind and stated his recommendation, is not sufficient “opportunity to be heard.”
Even more troubling was the Examiner’s apparent reliance on a New Jersey State Police Report conclusion that Gambino was involved in organized crime. This report was never mentioned at the hearing. There is passing reference to it in the Examiner’s Initial Hearing Summary as evidence providing one of the bases for the conclusion that Gambino was involved in organized crime. However, the Examiner made no mention at all of the New Jersey report during the hearing — either before or after he had made his decision.
Following the hearing, Gambino appealed the denial of parole to the National Appeals Board. The fact that he may have had an opportunity to challenge the evidence on appeal is not sufficient.6 The procedural posture on appeal of a denial of parole is completely different from that of the initial hearing on the merits. First, at the hearing the prisoner can submit live testimony (his own or a witness’s); on appeal, the prisoner can only make written presentations. Compare 18 U.S.C. § 4208(e); 28 C.F.R. § 2.19(b)(4)7 with § 2.27(b).8 For example, if a prisoner had an alibi defense for prior uncharged criminal conduct that was being used as the basis for denial of parole, the *168alibi witness could testify before the Hearing Examiner; he could not before the National Appeals Board. Second, the standard of review of evidence submitted is different at the hearing than it is on appeal. At the hearing, the Examiner makes factual findings on a “preponderance of the evidence” standard; on appeal, the National Appeals Board owes some deference to the findings of the Hearing Examiner. Compare § 2.19(c)9 with § 2.26(e).10 Thus, a prisoner, who has an opportunity to be heard only on appeal, must prove not only that his version of the events is true by a preponderance of the evidence, as at a hearing, but also that the hearing examiner, whose decision is owed some deference, was wrong in his preponderance of the evidence determination. This is a higher standard of persuasion. Third, a prisoner has a statutory right to be present at his parole hearing; he does not at his appeal. See 18 U.S.C. § 4208(e); 28 C.F.R. § 2.13(a).
For all these reasons, the posture of a case on appeal is not the same as a hearing on the merits. A prisoner’s opportunity at the hearing to rebut allegations of fact is a right protected by statute and regulations. His opportunity on appeal to challenge the veracity of facts, already established, cannot make up for the loss of his earlier right to be heard.
Inferential support for this proposition is drawn from the fact that many circuits have held that the Commission may not rely on information undisclosed to the prisoner in determining eligibility for parole even if the information is subsequently made available to prisoners on administrative appeal. See United States ex rel. Schiano v. Luther, 954 F.2d 910, 915 (3d Cir.1992); Pulver v. Brennan, 912 F.2d 894, 896-97 (7th Cir.1990); Anderson v. United States Parole Comm’n, 793 F.2d 1136, 1137-38 (9th Cir.1986). See also Liberatore v. Story, 854 F.2d 830, 838 (6th Cir.1988) (remanding to determine whether late received documents had to be disclosed). These eases all deal with violations of either 18 U.S.C. § 4208(b)(2) or 28 C.F.R. § 2.55 (Commission’s obligation to disclose inculpatory information prior to a parole hearing), not of § 2.19(c), the regulation at issue here. However, they recognize the notion that post-hearing access to information does not remedy prior violations.11
In response to Gambino’s argument that the Commission has violated § 2.19(c), the Commission has raised a procedural default issue of waiver. The Commission asserts that Gambino waived his right to appeal the § 2.19(c) issue because he neglected to assert this argument to this Court until his pro se reply brief. Ordinarily, an appellant’s failure to raise an issue in a opening brief constitutes abandonment or waiver of that issue. See Republic of the Philippines v. Westinghouse Electric Corp., 43 F.3d 65, 71 n. 5 (3d Cir.1994) (appellants required to set forth issues and present arguments in favor of those issues in opening brief); Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993). See also Fed. R.App. P. 28(a). The rule serves two related purposes. First, it protects the appellee from the prejudice that results from *169the court’s consideration of a late argument to which the appellee ordinarily cannot issue a written response. Second, it promotes the values of our adversarial system by ensuring that the court has heard adequate argument on a particular issue prior to rendering its decision. See Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir.1994); Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C.Cir.1992). 16A C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3974 n. 4 (1996). Despite this rule, however, appellate courts may in their discretion consider issues not properly raised in an opening brief. The D.C. Circuit has stated that it will consider issues raised only in the reply brief — or issues not raised at all — when the error is so “plain” that manifest injustice would otherwise result. See Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C.Cir.1992). Similarly, the Ninth Circuit also has held that courts may consider an issue improperly raised if failure to do so would create manifest injustice. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992) (because manifest injustice would result in court’s reversal only of codefendant’s conviction, court would entertain defendant’s argument for reversal despite fact that argument was not raised until reply brief).12
In addition to preventing manifest injustice, some circuit courts have expressed a willingness to consider an issue not properly presented in an opening brief where the equities favor the court’s consideration of the issue or if the appellee is not likely to be prejudiced. See Ullah, 976 F.2d at 514 (Ninth Circuit willing to consider issue raised only in reply brief when government had already addressed the issue in consolidated brief and therefore suffered no prejudice); Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 522 n. 8 (4th Cir.1995).
Under the circumstances of this case, I conclude that it is appropriate to consider the notice issue raised by Gambino in his pro se reply brief. First, the record clearly demonstrates that the Parole Commission never gave Gambino an opportunity to refute the evidence against him at his parole hearing'. Were this a trial, this defect might very well rise to the level of “plain error.” Manifest injustice would result if we were to penalize Erasmo Gambino for the strategic shortcomings of his attorney. Second, the government was not prejudiced by Gambino’s late presentation of the issue in the reply brief because we permitted the Commission to file a surreply brief in response to Gambino’s pro se reply. Consequently, the issue was fully addressed by both sides and therefore was subject to the intellectual rigors of the adversarial process. As such, I find the Parole Commission’s waiver argument not to be persuasive.
As a remedy for the violation of § 2.19(c), it is clear that “[a] court can set aside agency action that fails to comply with the agency’s own regulations at least where the regulations are designed to protect the individual grievant.” Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir.1988).13 Such is the case here. An appropriate disposition is to remand to the Commission to conduct a parole hearing in compliance with its regulations. Patterson v. Gunnell, 753 F.2d 253 (2d Cir.1985) (remanding for a new parole hearing upon finding of Commission’s failure to comply with § 2.19(c)’s notice provision).
II. The Written Notice of Reasons for Denial of Parole
In addition to violating 28 C.F.R. § 2.19(c) by not providing Gambino with notice and an opportunity to respond to the evidence against him, the Commission exacerbated matters by its subsequent failure to provide a summary of the evidence used in determining *170to deny parole, in violation of 18 U.S.C. § 4206(c)14 and its concomitant Parole Commission regulation, 28 C.F.R. § 2.13(d).15,16 Gambino had a parole hearing on August 20, 1994, pursuant to which he was denied parole. Both federal law and Commission regulations require that the Commission explain the nature of the evidence relied on to deny parole. Section 4206(c) requires that the prisoner be “furnished [with] written notice stating with particularity the reasons for its determination including a summary of the information relied upon.” Section 2.13(d) requires that “the reasons ... [shall include] the specific factors and information relied upon.” In an effort to comply with these requirements, the Commission, throughout the administrative appeals process prepared four separate documents purporting to summarize the evidence linking Gambino to La Cosa Nostra. All were inadequate. None of the Pre-Hearing Assessment, Parole Commissioner’s Initial Hearing Summary, Regional Commissioner’s decision, and National Appeals Board Notice of Action refer to the reliable informant, cited by the government in its sentencing memorandum for co-defendant Rosario Gambino, who linked Erasmo Gambino to La Cosa Nostra.17 Thus Gambi-no was denied any notice of arguably the most forceful evidence linking him to La Cosa Nostra and so was ill-prepared to contest this evidence on appeal. See Nunez-Guardado v. Hadden, 722 F.2d 618, 624 (10th Cir.1983) (explaining that the purpose of requiring a summary of the evidence is so that prisoner can “fully exercise his right of appeal”). Furthermore, the combination of the failure to confront Gambino with such evidence at the hearing — the violation of § 2.19(c), coupled with the failure to summarize the evidence post-hearing — placed Gam-bino in a particularly difficult position.
The Commission’s claim in its response to Gambino’s Pro Se Reply Brief that we should reject Gambino’s claim because Gambino had access to the government’s sentencing memorandum, which was a part of his central file, see Parole Comm’n Reply Br., at 2, is weak. The mere fact that Gambino may have had access to the sentencing memorandum (and the informant’s statements contained therein) is meaningless. Section 4206(c) requires the Commission to provide a summary of the information on which it has relied when it makes a “good cause” determination and denies parole. To construe the requirements of § 4206(c) as anything less than to require the Commission to identify the essential pieces of information that caused it to associate Gambino with organized crime, would be improper. Only with such identification, can *171Gambino be in a position to challenge this determination on appeal.
In addition, the government argues that Gambino waived the § 4206(c)/§ 2.13(d) claim, despite Gambino having raised the issue before the district court, see District Court Op., at 9-10, by not asserting it in his opening appellate brief, i.e., he did not raise it on appeal until he submitted his pro se reply brief. Despite the procedural default, I have considered this claim. I did so for the reasons stated in Section I: a) so as not to create manifest injustice to the defendant and b) since the Commission will not be prejudiced because we permitted it to file a Surreply Brief.
The Commission’s argument that Gambino failed to exhaust his administrative remedies by not making this argument before the Parole Commission stumbles at the outset. Gambino could hardly have complained about inadequate notice of inculpatory information before he knew he was being deprived of pertinent information in the first place.
Ordinarily, federal prisoners are required to exhaust their administrative remedies pri- or to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.1996) (prisoner must exhaust administrative remedy prior to challenging disciplinary proceeding in habeas petition); Tatum v. Christensen, 786 F.2d 959, 964 (9th Cir.1986). Unlike the rule requiring prisoners to exhaust state remedies, this rule is of judicial and not statutory creation. In either ease, exhaustion is not required when the petitioner demonstrates that it is futile. See Rose v. Lundy, 455 U.S. 509, 516 n. 7, 102 S.Ct. 1198, 1202, 71 L.Ed.2d 379 (1982) (exhaustion of state remedies not required where futile). Cf. Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir.1988) (in Bivens action, federal prisoners need not exhaust administrative remedies if futile or if actions of agency “clearly and unambiguously violate statutory or constitutional rights”).
There is no question that Gambino appealed the Hearing Examiner’s denial of parole to the regional and national levels of the Parole Commission. Throughout those appeals, Gambino maintained that the Commission had incorrectly identified him as a member of an organized crime family. At no point did the Commission indicate that it had relied on the “reliable government informant” for its determination that Gambino was a member of La Cosa Nostra. Since the administrative process failed to reveal to Gambino the Commission’s reliance on the government informant, that process has proved itself to be futile. As such, the Commission’s exhaustion argument must fail.
It is clear that the Commission failed to comply with § 4206(c) or § 2.13(d) by failing to adequately summarize the information it relied on in denying Gambino parole. It is also clear that the district court relied at least partially on this information when it affirmed the Commission’s decision. See District Court Op. at 8-9. For these reasons, I would reverse the district court’s finding that § 4206(c) was satisfied and I would join with the majority in remanding for another parole hearing, one which would comply with all applicable law, including §§ 4206(c), 2.13(d) and 2.19(c). Patterson v. Gunnell, 753 F.2d 253 (2d Cir.1985).
. A prisoner ... serving a term ... of 5 years or longer shall be released on parole after completion of two-thirds of each consecutive term ... unless pursuant to a hearing under this section, the Commission determines that there is a reasonable probability that the prisoner will commit any Federal, State or local crime or that the prisoner has frequently or seriously violated the rules of the institution in which he is confined.
28 C.F.R. § 2.53(a).
. The Commission may take into account any substantial information available to it ... and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond.
28 C.F.R. § 2.19(c).
. 18 U.S.C. § 4206(c) provides in part:
The Commission may grant or deny release on parole ... if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including summary of the information relied upon.
. Gambino with his pro se brief in this Court presented a copy of the uncertified transcript of the parole hearing. This record was not before the district court. Thus, it is not properly part of the record before us. Nevertheless, pursuant to Fed. R.App. P. 10, X will consider it to substantiate factual allegations made by Gambino as to the events that took place at the Hearing. This is appropriate particularly where the Parole Commission has never challenged the accuracy of the transcript or of Gambino's version of what transpired at the parole hearing as argued in his pro se brief.
.Gambino described the procedure in the following manner:
Gambino and his attorney were instructed by the parole examiner to leave the hearing room. After being called'back by the parole examiner, Gambino was informed of the parole examiner’s recommendation to serve to the expiration of his 34 year sentence. The parole examiner then mentioned for the first time the Pennsylvania Crime Commission report [linking him to La Cosa Nostra]. A single question was posed to Gambino, and only after counsel suggested to the parole examiner to ask Gambino *167if he was a member of organized crime. The superficial organized crime question came only after the parole examiner made his decision to continue Gambino to expiration of his sentence.
Gambino Pro Se Reply Br., at 12-13.
.I recognize that Kell v. United States Parole Commission, 26 F.3d 1016, 1022 (10th Cir.1994), accepted the contrary proposition. There the Tenth Circuit held that, in the context of a parole revocation hearing, a prisoner was sufficiently "apprised of the information and afforded an opportunity to respond” within the meaning of 28 C.F.R. § 2.19(c), when he, being denied information at the parole revocation hearing, was afforded an opportunity to respond via pursuit of the administrative review process. Kell relied on Patterson v. Gunnell, 753 F.2d 253, 255-56 (2d. Cir.1985), where the Second Circuit held that § 2.19(c) was not satisfied where petitioner had no opportunity to respond when the National Appeals Board relied on aggravating circumstances of which petitioner had not been informed. However, the Second Circuit never passed on the issue before us. Furthermore, the Tenth Circuit in Kell was ruling in the context of a parole revocation hearing, not an initial parole hearing where the due process liberty interests at issue are different.
. "The Commission will normally consider only verbal and written evidence at hearings.” 28 C.F.R. § 2.19(b)(4).
. "Attorneys, relatives, and other interested parties who wish to submit written information concerning [a prisoner’s appeal] should send such information to [the following address] ... thirty days in advance.” 28 C.F.R. § 2.27(b).
. "If the prisoner disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard.” 28 C.F.R. § 2.19(c).
. Appeals ... may be based on the following grounds:
(3) That especially mitigating circumstances (for example, facts relating to the severity of the offense or the prisoner’s probability of success on parole) justify a different decision;
(4) That a decision was based on erroneous information, and the actual facts justify a different decision.
28 C.F.R. § 2.26(e). It would appear that review of factual determinations by the National Appeals Board is for clear error.
. Gambino argues for the first time on appeal to this Court that he was not provided the requisite disclosure of documents prior to his parole hearing. Title 28 of the Code of Federal Regulations section 2.55(a) instructs that the Parole Commission, at least 60 days prior to an initial parole hearing, must notify each prisoner of "his right to request disclosure of the reports and other documents to be used by the Commission in making its [parole] determination.” Gambino argues that he was not provided such notice. Gambino Pro Se Reply Br. at 8. As a result, Gambino. did not exercise his right to request disclosure under § 2.55. He claims that as a consequence he was ill-prepared at his parole hearing to refute the evidence of his involvement with La Cosa Nostra. We cannot determine from the record before us whether the Parole Commission violated § 2.55(a) as well.
. The manifest injustice exception is somewhat similar to the "plain error” rule, which is applied in the context of appeals from criminal trials, and allows appellate courts to consider defects at the trial level even when the defendant has failed to lodge an appropriate objection. See Fed.R.Crim.P. 52(b).
. See also United States v. Nixon, 418 U.S. 683, 695-96, 94 S.Ct. 3090, 3101-02, 41 L.Ed.2d 1039 (1974); Frisby v. United States Department of Housing & Urban Development, 755 F.2d 1052, 1055-56 (3d Cir.1985); D'Iorio v. County of Delaware, 592 F.2d 681, 685 n. 2 (3d Cir.1978); Bluth v. Laird, 435 F.2d 1065, 1071(4th Cir.1970).
. The Commission may grant or deny release on parole ... if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.
18 U.S.C. § 4206(c).
. In accordance with 18 U.S.C. 4206 the reasons for establishment of a release date shall include ... the specific factors and information relied upon for any decision outside the range indicated by the guidelines.
28 C.F.R. § 2.13(d).
. In addition, it is quite possible that the Commission's behavior violated Gambino’s constitutional due process rights. Several courts of appeal have found that the federal parole statute creates a substantial expectation of parole that is protected by the due process clause. See Kindred v. Spears, 894 F.2d 1477, 1481 (5th Cir.1990); Solomon v. Elsea, 676 F.2d 282, 285 (7th Cir.1982); Evans v. Dillahunty, 662 F.2d 522, 526 (8th Cir.1981). While the amount of process owed a parolee by the Constitution is not clear, see, e.g., Evans, 662 F.2d at 526, the Parole Commission's statutes and regulations bind it to a higher level of procedural protection. See Kindred, 894 F.2d at 1481-82. As a federal agency, the Parole Commission has an obligation to abide by its own regulations and laws. See Marshall v. Lansing, 839 F.2d 933, 941 (3d Cir.1988). Because I find a violation of federal statute and regulations, the question of whether there was a violation of Gambino’s Constitutional due process rights need not be decided. Northwest Airlines, Inc., v. Transport Workers Union Of America, 451 U.S. 77, 86 n. 15, 101 S.Ct. 1571, 1578 n. 15, 67 L.Ed.2d 750 (1981).
.In addition, the Parole Commissioner’s Initial Hearing Summary fails to mention the discovery of Pietro Inzerillo's body in Gambino's car. See Petitioner’s Appendix, at 6. However, the Parole Commission arguably cured this deficiency after the case was referred for original jurisdiction, since the Regional Commissioner's decision cites the discovery of the body in Gambino’s trunk as support for its determination. See Petitioner’s Appendix, at 9.