with whom McMILLIAN, Circuit Judge, joins, dissenting.
I respectfully dissent from the majority’s opinion in this case for several reasons. The majority overstates the holding of Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), and in so doing asks the wrong question about Lyon’s failure to exhaust. Secondly, the majority opinion disagrees with a vacated panel opinion that rested on the most narrow grounds and would have remanded to the district court for crucial fact-finding *810and reconsideration in light of new Supreme Court rulings on PLRA exhaustion that were not available to the trial judge when he ruled on these matters. Finally, the opinion ignores the significant expenditure of time and resources spent on a six-year-old case in which there already exists a jury verdict, injunctive relief, and an award of damages.1 Essentially, we are now telling the parties to start all over from square one based on a non-jurisdictional failure to exhaust, the facts of which have never been fully developed. Moreover, the ruling announced in Booth is undergoing development in the courts and is not necessarily dispositive of the case before us.
According to the majority, Booth and the PLRA mandate that the resolution of this case lies in answering one question: Was there a procedure available? In the majority’s view, ISP did have a prison grievance procedure, Lyon knew about the procedure, ISP officials never told Lyon there was not a procedure, and no statements made by ISP officials could have misled Lyon about the availability of the procedure.
Unfortunately, the question asked by the majority is not properly tailored to the facts of this case, nor is it a correct inquiry under the case law. Of course there was a grievance system; Lyon availed himself of this system initially. Thus Lyon certainly knew about it. The ISP officials did not tell him that this grievance system did not exist; the ISP officials knew the system existed and was in place. What the ISP officials may have done, and the may is critical here because it reveals the factual uncertainty of this case, is prevent Lyon from exhausting his administrative remedies by creating the impression that his claims were not grievable through the ISP grievance system. According to Lyon, the officials’ comments and actions sent a clear message: the ISP grievance system does not have the authority to address your complaint, only the Jewish consultant has the power to resolve such grievances. This is precisely the matter on which the first panel opinion sought factual clarification.
The information we do have suggests that Lyon could have been misled by ISP officials. On March 14, 1996, Vande Krol sent a memo to inmates on the Jewish chapel list at the ISP. The memo explained that Vande Krol received a letter from Rabbi Jacobson and that only four inmates would be allowed to participate fully in the ISP’s Jewish life.2 For others who wished to participate, Vande Krol directed the inmate to “verify his Jewish background to the satisfaction of the Jewish consultant.” Four days later, Lyon sent an inmate memo to Vande Krol explaining that he had been a member of the Jewish community for the three years necessary to be “grandfathered” onto the list of inmates allowed to participate in Jewish activities. Lyon went on to request kosher food for celebrating Passover. Vande Krol responded by telling Lyon:
*811[T]he Jewish rabbi has made this recommendation to ISP due to the abuses that were taking place. I do not control the Jewish community, but see to it that recommendations made by consultants to ISP are administered. (While I had no input into the choice of the four, I understand it took into account Jewish background, etc.)
On May 30, 1996, Lyon sent another inmate memo, in his words, “attempting an informal resolution of a grievance.” Again Lyon asserted the right to practice his Jewish faith. Deputy Warden -Paul Hed-gepeth’s response read: “You are permitted to attend the Jewish service. The experts suggest STUDY, attend service but do not participate, & the kosher food issue is not relevant. The experts also say no one should be converted to Judism [sic] while in prison.” (emphasis in original).
The majority construes Vande Krol’s response as “at best, a prediction that Mr. Lyon would lose if he complained through the administrative grievance procedure,” and it interprets Hedgepeth’s comment as implying that ISP officials “were deferring to the judgment of others in their decision-making process, but it cannot in any event have changed the fact that procedures were available to Mr. Lyon.” This interpretative gloss on the administrative record would be entirely appropriate if the en banc court were charged with deciphering facts, but such is not the case. Rather, this appeal poses the question of whether the district court erred in excusing Lyon’s failure to exhaust. I believe we have strayed from this inquiry.
Judge Longstaff, an able and experienced district judge, considered the prison officials’ failure to exhaust argument and excused the non-exhaustion on several grounds: (1) the money damages that Lyon sought were unavailable through the ISP grievance procedure; (2) several other inmates were unable to convince prison officials to change the policy; (3) “requiring exhaustion now would result in undue prejudice to subsequent assertion of a court action”; and (4) the parties and the court have already invested significant resources into the (then) three-year-old case. After Booth, the first reason offered by the district court is no longer valid and the second reason likely can be viewed as a futility exception, which most circuit courts have rejected as an excuse for failure to exhaust. However, the third and fourth reasons presented by the district court may not be foreclosed by Booth. 532 U.S. at 741 n. 6, 121 S.Ct. 1819 (“Here, we hold only that Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.”). The majority opinion makes no mention of these two factors.
Moreover, the majority’s reliance on Booth does not withstand scrutiny. The Supreme Court began its analysis in Booth by pointing out that neither party “argues that exhaustion is required where the relevant administrative procedure lacks authority to provide any relief or take any action whatsoever in response to [the] complaint.” Id. at 736, 121 S.Ct. 1819. Having stated this, the Court considered whether an inmate plaintiff is held to the exhaustion requirement when “the administrative process has authority to take some action in response to a complaint, but not the remedial action an inmate demands to the exclusion of all other forms of redress.” Id. This is the issue the Court resolved. The Booth Court did not address situations where prison officials deliberately create the impression that the administrative process has no authority to take action in response to a complaint. We now face this question, and it was not decided by Booth.
*812The Booth Court did conclude that amendments to § 1997e(a) “eliminated both the discretion to dispense with administrative exhaustion and the condition that the remedy be ‘plain, speedy, and effective’ before exhaustion could be required.” Id. at 739, 121 S.Ct. 1819. Exhaustion in cases covered by § 1997e(a) is now mandatory. See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002) (citing Booth). However, Booth may not have foreclosed all possibilities that mandatory exhaustion can be excused by a district court. For example, McCarthy v. Madigan, 503 U.S. 140, 146-49, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), allowed “three broad sets of circumstances” under which administrative exhaustion may be excused: (1) where requiring exhaustion would create undue prejudice to subsequent assertion of a court action; (2) as Booth acknowledged, where the agency lacks institutional competence to resolve the type of issue presented; and (3) where the administrative body is shown to be biased or has otherwise predetermined the issue before it. The power of a district court to excuse administrative exhaustion under rare circumstances is supported by the fact that this circuit has held that § 1997e(a) is not jurisdictional. See Foulk v. Charrier, 262 F.3d 687, 696 (8th Cir. 2001) (citing Chelette v. Harris, 229 F.3d 684, 686-88 (8th Cir.2000)).
Under an objective test, if prison officials prevent prisoners from exhausting their claims by making it appear that the prison has no available administrative procedures for handling the prisoner’s claim, excusing the exhaustion requirement might yet be an option. In Porter v. Nus-sle, the Supreme Court explained that Congress’ intent in enacting § 1997e(a) was to “afford[] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” 122 S.Ct. at 988. If prison officials refuse to avail themselves of this opportunity and mislead inmates as to their authority to resolve grievances, excuse of administrative exhaustion may be an appropriate remedy.
In the instant matter, the district court determined that Lyon would face “undue prejudice to subsequent assertion of a court action” if exhaustion were not excused. The court also explained how significant resources had been expended on the case. The en banc court now reverses the district judge without fully addressing his ruling or considering it in relation to relevant binding precedent.
Because there are underlying mixed questions of fact and law that need to be resolved before the applicability of Booth can b¿ determined, the original panel was correct in its decision to remand the matter to the district court for preliminary consideration. In the rush to resolve this case on procedural grounds, the en banc court has done both the district court and Lyon a great disservice. I reiterate that a final resolution of the case rests on an incomplete factual record, and an application of a Supreme Court decision that may not apply to a fully developed record. The rush to judgment here is unseemly and unfair to the parties, the district court, and to the law. Thus I dissent.
. The district court upheld the jury's nominal damages award, reversed the jury's punitive damages award against the former and present ISP wardens, and reduced the punitive damages award against Vande Krol from $100,000 to $30,000. Lyon obtained one dollar in nominal damages against Vande Krol, Helling, and Hedgepeth, and, as previously mentioned, $30,000 punitive damages against Vande Krol. The district court also granted injunctive relief directing ISP officials to allow Lyon access to Jewish artifacts, services, and kosher food.
. At trial in this case, it came to light that Vande Krol himself had drafted the memo excluding all but four inmates and then asked Rabbi Jacobson to sign it.