concurring:
I concur in Judge REID’s opinion but write separately because I believe Part II.C., discussing “whether the exhaustion of remedies doctrine applies to Walton’s third argument,” ante at 1355, requires further elaboration:
The question whether a plaintiff has exhausted administrative remedies before coming to court is not a jurisdictional inquiry, since “exhaustion of remedies is a ‘flexible doctrine’ subject to ‘a number of interrelated exceptions.’ ” District of Columbia v. Group Insurance Administration, 633 A.2d 2, 20 (D.C.1993) (citation omitted); see Tenants of 1255 New Hampshire Avenue, N.W. v. District of Columbia Rental Housing Commission, 647 A.2d 70, 76 (D.C.1994). Nonetheless, in a case such as this where we have stressed that exhaustion is required before the trial court can consider an issue, see ante at [1353-54] & n. 16,1 am reluctant to reach the merits merely by assuming an exception or some other explanation applies such that “[w]e need not decide whether Walton sufficiently exhausted his administrative remedies.” Ante at 1355.
As analysis of the record makes clear, under the unusual circumstances of this case, Walton had no administrative remedies to exhaust on the two issues embraced by his third argument: (1) whether the Adjustment Board’s second written statement “is fatally defective because it contains only two hearing board member signatures, instead of three”; and (2) whether that statement also is defective “because it was not issued within three working days of his January 28, 1992, hearing.” Ante at 1355 (footnote omitted). The trial court, therefore, properly considered these issues on their merits, as do we.
Here is what happened. Walton was charged with violating prison regulations that essentially forbid an inmate’s making, or attempting to make, alcoholic beverages. He defended on the ground that the evidence was insufficient to support the claimed violations. A three-member prison Adjustment Board found Walton guilty of the charged infractions. He appealed to the prison Administrator pursuant to 28 DCMR § 513.9. Walton essentially repeated on appeal his contention that the evidence was insufficient. The Administrator denied the appeal, and Walton accordingly filed suit in Superior Court. In his complaint, Walton alleged that the original written statement violated a number of regulations, including 28 DCMR § 512.7, which requires a written statement of the Board’s “findings as to the resident’s involvement, [and] the factual information upon which the finding is based.” Walton also repeated the evidentiary sufficiency arguments he had alleged in his administrative appeal. The trial judge found that “the Adjustment Board has not issued a written statement of findings setting forth the reasons for its disciplinary action as required by [28 DCMR § 512.7]” and therefore remanded the matter to the Adjustment Board “to issue its written findings pursuant to [§ 512.7].” The trial court further ordered that “all other motions are held in abeyance until defendants comply with the Court’s remand order.”
*1357Although the trial judge apparently remanded the matter to the Adjustment Board because the original 'written statement did not satisfy § 512.7, as Walton had alleged— for the first time — in his lawsuit, it is also clear that the trial judge believed he could not adequately review for evidentiary sufficiency without a more detailed statement of the Board’s findings and conclusions. See ante at 1352-53. The judge was saying, in effect, that he could not review for sufficiency without an adequate written explanation on of what had happened and of why Walton’s conduct violated the charged disciplinary regulations. Although Walton himself had never contended on appeal to the Administrator that the written statement regulation, § 512.7, had been violated, the judge effectively ruled — and this court sees no reason for doubting — that evidentiary sufficiency could not be resolved in this case without a written statement, which had not been provided, meeting the requirements of § 512.7.
The Board reconvened, prepared a more detailed written statement, and sent that statement directly to the trial judge, as requested. Because the statement did not go to the judge through the Administrator, Walton had no administrative remedy to exhaust with respect to it.1 For all practical purposes, Walton received the statement in the same July 1993 delivery that transmitted the statement to the trial judge. Upon receipt of the revised written statement, the court sua sponte resumed consideration of the remaining pending motions and, on August 13,1993, denied Walton’s motion for summary judgment and granted the defendant’s cross-motion for summary judgment. Because of the procedures employed in this case, therefore, the only place that Walton effectively could challenge the statement was in court. See Tenants of 1255 New Hampshire Avenue, N.W., 647 A.2d at 76 (after remand, “[tjhere was no adverse ruling by the Rent Administration from which the tenants could appeal to the Commission”).
As it turned out, the second written statement contained only two of three required signatures, see 28 DCMR § 512.9, so Walton complained to the court that the statement violated that procedural regulation.2 It was entirely proper for Walton to raise this issue with the trial court in the first instance, since the remand proceeding did not create any opportunity for an administrative remedy of the Board’s alleged violation of § 512.9. See id. A challenge to the number of signatures, moreover, is not necessarily frivolous, for without all the required signatures there is no assurance that the statement represents the considered views of all Board members.3
Theoretically, I suppose, one could argue that Walton’s failure to challenge the Board’s first written statement when he initially appealed the Board’s ruling to the Administrator means that Walton has waived all claims of administrative irregularity in issuing the Board’s written ruling — even the second one the trial judge requested. But that argument would fail. Once the trial court has ruled, in effect, that the prisoner’s evidentia-ry sufficiency claim cannot be resolved without a more comprehensive written statement, the prisoner must be entitled to challenge the adequacy of that statement on any ground the regulations permit; otherwise, the Board again might supply a defective document — in this case unreviewed by the Administrator — that effectively frustrates the court’s need for assurance that the statement procedurally and substantively provides *1358an adequate record for reviewing sufficiency of the evidence.
The difficulty here could have been avoided if the trial judge had followed the usual path, remanding the record — or the case — to the Administrator, who would be responsible for transmitting the request to the Board. The Board would then have issued its written statement to the Administrator, who would have ruled on its adequacy before sending the statement along to the court. Presumably, as part of that standard remand procedure, the prisoner, Walton, would have had an opportunity to argue to the Administrator about the adequacy of the second written statement; i.e., the prisoner would have had an administrative remedy to exhaust during remand, before the court resumed the proceeding. But that approach was not taken here. By dealing directly with the Board, the trial judge cut the prison Administrator out of the process and precluded Walton from seeking an administrative remedy before the judge took up the merits of Walton’s remaining claims in the light of the new written statement.
I believe that, in some circumstances, when a prisoner brings a § 512.9 issue to the court, the trial court will have to remand for the required signatures, in order to be sure that the statement reflected the considered findings and conclusions of the entire Board. Under applicable regulations, see ante at note 6, a prisoner has the right to select between a single hearing officer and a three-member Adjustment Board, and thus in choosing the latter the prisoner has a right to count on the participation of every member. In this particular case, however, I believe that the reason the Board proffered to the court concerning the missing signature was enough to preclude the need for a second remand.
There is no dispute about why there were two, not three, signatures: one of the Board members no longer was employed by the prison system and thus, presumably, could not participate in the remand proceeding. Walton has never argued that the statement did not reflect the findings and conclusions of a majority of the Board or that there is any reason to believe the absent member would have objected to the statement and persuaded the others to change it in some respect. The written statement, therefore, does not appear to be tainted by the lack of a third signature. In other words, there is no basis for arguing that omission of the third signature reflected some kind of protest against the substance of the written statement that the trial court was required to take into account.
All this is to say that I believe this court correctly reaches the merits of Walton’s two technical arguments applying §§ 512.9 and 512.10, to the second written statement. There was no failure to exhaust administrative remedies because, as elaborated above, no administrative remedy was available. But because the regulations, §§ 512.9 and 512.10, did not afford Walton any basis for relief on the facts of this case, I agree with affirming the trial court’s decision.
. By ordering that the Board submit the revised written statement directly to the trial court, the court’s order apparently also circumvented the procedural safeguard ensured by 28 DCMR § 513.1, which requires the Administrator (or the Administrator's designee) to "review all decisions rendered by the Adjustment Board or by hearing officers.”
. Walton also complained that the statement violated 28 DCMR § 512.10 because it had not been issued within three days of Walton’s hearing before the Board. That contention is frivolous in view of the fact that Walton had never complained that the first Board ruling had been untimely and that the regulation obviously was not directed at the period, during which the case is on appellate review of the Board’s ruling.
.Indeed, if only one signature had accompanied the statement, that fact would support a substantial argument that the statement on its face did not reflect the views of a Board majority.