text:
    UNITED STATES of America, Appellee, v. Jeffrey DELGADO-LÓPEZ, Defendant, Appellant.
    No. 15-1312
    United States Court of Appeals, First Circuit.
    September 21, 2016

      Linda Backiel on brief for appellant.
    Mainon A. Schwartz, Assistant United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodriguez-Vélez, United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge,. TORRUELLA and'LYNCH, Circuit Judges.
   LYNCH, Circuit Judge.

Charged with being an armed member of a drug-dealing conspiracy, Jeffrey Delgado-López pleaded guilty. The district court accepted Delgado-López’s plea and sentenced him to 33 months in prison for the drug count of the indictment, as well as 60 consecutive months for the accompanying weapons count. Delgado-López did not attempt to withdraw his plea before the district court.

Delgado-López now seeks to vacate both his guilty plea and his sentence. He argues that we must vacate his plea on Count Six, the weapons charge, because it was neither “knowing” nor rooted in a factual basis. He also asserts that the district court erred by augmenting his Guidelines sentencing range on a mistaken belief that Delgado-López was on probation for a separate offense when he committed the crimes at issue here. Finding no error on either score, we affirm.

I.

Delgado-López was indicted on April 23, 2014, as one of 48 defendants who had allegedly conspired to sell heroin, cocaine, and marijuana at public-housing projects in Mayagüez, Puerto Rico. The government agreed to abandon Counts Two through Five of the indictment if Delgado-López would agree, in exchange, to plead guilty to Count One, which charged him with participating in the conspiracy to possess illegal drugs with intent to distribute, see 21 U.S.C. §§ 841(a)(1), 846, 860, and Count Six, which charged him with using or carrying a firearm in furtherance of the conspiracy, see 18 U.S.C. §§ 2, 924(c)(1)(A).

Delgado-López took the deal. On October 29, 2014, at his change-of-plea hearing, he stated that he was competent to plead, felt satisfied with his attorney, understood that he was waiving his constitutional right to a trial, and understood the nature and consequences of each charge to which he was pleading guilty. With respect to the weapons count, he told the district judge that he understood the charge but that the underlying allegation — -that he had used or carried a weapon — was “a lie.” The judge then explained that, “[wjhether [the allegation was] completely true or not completely true,” Delgado-López was choosing to plead guilty to avoid the possibility that the government had enough evidence to prove the weapons charge at trial — in which case, as the judge had explained earlier, Delgado-López would likely receive a considerably harsher sentence. Delgado-López confirmed that he understood that choice, that his attorney had explained the situation to him, and that he wanted to go forward with the plea. ■

Sentencing took place months later on February 12, 2015. Delgado-López did not object in court to the Presentence Investigation Report (“PSR”), which contained, in pertinent part, two additional criminal-history points in the calculation of his Guidelines range for participating in the conspiracy while he was on probation. See U.S.S.G. § 4Al.l(d). That enhancement moved Delgado-López from Criminal History Category I to Category II, thereby shifting his Guidelines range for Count One upward from 30-37 months to 33-41 months. See id. ch. 5, pt. A. The district court chose to impose a 33-month sentence for Count One, at the bottom of the agreed-upon Guidelines range, as well as a mandatory-minimum 60-month sentence for Count Six. See 18 U.S.C. § 924(c)(l)(A)(I).

This timely appeal under 28 U.S.C. § 1291 followed.

II.

Delgado-López failed to object to either of the two purported errors he now identifies. So he faces the “heavy burden” of plain-error review and must prove not only a clear error but also that the error “affected [his] substantial rights [and] seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir. 2013) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). He cannot meet this burden.

A. Guilty Plea

Delgado-López first claims that his guilty plea was not “knowing” with respect to Count Six. At the outset, we agree with Delgado-López that the appeal waiver in his plea agreement does not bar this claim. “After all, if a plea is invalid, the plea agreement (and, thus, the waiver provision contained within it) disintegrates.” Id. But we need not dwell further on a moot point. We find no error, much less plain error, in the district court’s decision to accept Delgado-López’s plea. See, e.g., United States v. Chambers, 710 F.3d 23, 27, 29 (1st Cir. 2013) (bypassing a similar waiver provision to reach, and reject, defendant’s merits claim of involuntariness).

District courts must ensure that a defendant understands the nature of the charges against him before accepting his guilty plea. Fed. R. Crim. P. 11(b)(1)(G). A standard Rule 11 colloquy generally suffices. See, e.g., Ramos-Mejía, 721 F.3d at 15 (“[A] district court [ordinarily may] ‘ascertain that a defendant is aware of the nature of the charge against him by reading the charge in the indictment to the defendant and obtaining his competent acknowledgment that he understands the charge.’ ” (quoting United States v. Delgado-Hernández, 420 F.3d 16, 26 (1st Cir. 2005))).

Having reviewed the transcript of Delgado-López’s Rule 11 hearing, we are satisfied that the district court met these standards. The judge not only allowed but “beg[ged]” Delgado-López to confer with his lawyer until he understood the plea agreement, including the disputed charge under § 924(c)(1)(A) for using or carrying a weapon. The judge then paused the hearing, telling Delgado-López and his attorney to take as much time as they needed to discuss the proposed deal. When Delgado-López returned to court, over three hours later, the judge carefully reiterated the mechanics, elements, and consequences of the plea agreement — including an accurate synopsis of § 924(c)(1)(A).

Delgado-López now argues, belatedly, that intellectual and educational limitations impaired his understanding. That contention is not adequately supported by the record. The judge explained each point to Delgado-López until he said he understood, and we see this case as one in which “the circumstances attendant to the charged crime were straightforward ... [and] a reading of the charge sufficed.” Ramos-Mejía, 721 F.3d at 15.

Finally, Delgado-López contends that the record fails to establish a factual basis for the weapons charge. He points to his statement during the change-of-plea hearing — that the allegation that he had been an armed seller was “a lie” — and highlights the .circumstantial nature of the government’s evidence. However, the government’s “necessary showing” to , overcome this argument “is fairly modest,” id. at. 16, and the record contains an adequate factual basis for the plea on Count Six. The government was prepared to present evidence that a marshal witnessed a man throwing a gun from the window of an apartment, whose only occupants were Delgado-López and his wife. And two of Delgado-López’s alleged cooperators were prepared to testify about his guilt on that count. Given that the government’s burden was “only [to] show a rational basis in fact for the defendant’s guilt,” id. there was no error in the district court’s decision to accept these allegations as sufficient.

B. Sentence

We also find no error, plain or otherwise, in the calculation of Delgado-López’s Guidelines range. Section 4Al.l(d) imposes a two-point enhancement in a Criminal History Category calculation “if the defendant committed the instant offense while under any criminal justice sentence, including probation — ”

It has long been clear that “a sentencing court-may consider facts contained in the [PSR] as reliable evidence,” in the absence of any defense objection. United States v. Cruz, 120 F.3d 1, 2 (1st Cir. 1997) (en banc); accord United States v. Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010); United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010). The district court was entitled to rely on the unobjected-to finding -of the probation officer that Delgado-López had still been on probation for prior offenses when he joined the drug conspiracy. And even if we were persuaded that the two-point. enhancement .constituted clear error, we would remain unconvinced that there is -a “reasonable probability that the trial court, but for the error, would have imposed a different, more favorable sentence.” United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc). Delgado-López’s 33-month sentence on Count One is squarely within the lower Guidelines range to which he says he was entitled.

III

For the foregoing reasons, we reject Delgado-López’s claims of error and affirm his conviction and sentence.

      . Because accepting the plea was not error, we need not consider the additional hurdles that plain-error review places in Delgado-Ló-pez’s path. For example, even if he could identify a "clear or obvious” error, he would still need to show "a reasonable probability that, but for the error, he might not have pled guilty.” United States v. Urbina-Robles, 817 F.3d 838, 842 (1st Cir. 2016). It is clear that Delgado-López would have faced a much harsher sentence if he had been convicted after a trial.

      . We do not decide whether Delgado-López has waived, and not merely forfeited, this claim. But "[t]here is a powerful case for waiver here,” because "a defendant who eschews a warrantable objection to a conclusion reached in a .presentence report lulls both the prosecution and the sentencing court into what will prove to be a false sense of security if he is later allowed to do an about-face.” United States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir. 2006).


source: Caselaw Access Project

author: LYNCH, Circuit Judge.

license: Public Domain

text:
    Karen L. DAVIDSON; Debbie Flitman; Eugene Perry; Sylvia Weber; American Civil Liberties Union of Rhode Island, Inc., Plaintiffs, Appellees, v. CITY OF CRANSTON, RHODE ISLAND, Defendant, Appellant.
    No. 16-1692
    United States Court of Appeals, First Circuit.
    September 21, 2016

      Normand G. Benoit, with whom David J. Pellegrino, Robert K. Taylor, and Partridge Snow & Hahn LLP, Providence, RI, were on brief, for appellant.
    Adam Lioz, Washington, DC, with whom Brenda Wright, Boston, MA, Demos, Dale Ho, Sean J. Young, American Civil Liberties Union, Lynette J. Labinger, and Roney & Labinger, LLP, Providence, RI, were on brief, for appellees.
    Christina Swarns, Sherrilyn Ifill, Janai Nelson, Leah C. Aden, Coty Montag, Juan Cartagena, Jose L. Perez, Joanna E. Cue-vas Ingram, Rebecca R. Ramaswamy, Danielle C. Gray, New York,. NY, Samantha M. Goldstein, and ■O’Melveny & Myers LLP, Washington, DC, on brief for NAACP Legal Defense & Educational Fund, Inc., LatinoJustice PRLDEF, Direct Action for Rights and Equality, and Voice of the Ex-Offender, amici curiae.
    Patrick Llewellyn, Aderson B. Francois, Yael Bromberg, and Institute for Public Representation, Georgetown University Law Center on brief for Former Directors of the U.S. Census Bureau, amici curiae.
    Before HOWARD, Chief Judge, LYNCH and KÁYATTA, Circuit Judges.
   LYNCH, Circuit Judge.

The City of Cranston appeals from an injunction, entered by the district court, forbidding the City from holding elections based on its 2012 Redistricting Plan and ordering it to prepare a new redistricting plan within- thirty days. The district court held that the inclusion in the Redistricting Plan of 3,433 inmates of the Adult Correctional Institutions (“ACI”) in the population count of the City’s Ward Six, the ward in which the ACI is physically located, dilutes the votes of voters in the City’s other five wards in violation of the Equal Protection Clause of the Fourteenth Amendment. The question presented is whether the Constitution permits Cranston to count the ACI prisoners as residents of Ward Six.

We issued a stay to preserve the status quo ante in anticipation of the September 13, 2016 primaries and the November 8, 2016 general election. We now hold that the methodology and logic of the Supreme Court’s decision in Evenwel v. Abbott, — U.S. -, 136 S.Ct. 1120, 194 L.Ed.2d 291 (2016), require us to reverse the district court and instruct it to enter summary judgment in favor of the City.

L.

The Rhode Island Constitution specifies that state legislative districts “shall be constituted on the basis of population and ... shall be as nearly equal in population ... as possible.” R.I. Const, art. VII, § 1; id. art. VIII, § 1. Similarly, Cranston’s charter, ratified by the Rhode Island General Assembly in 1963, see 1963 R.I. Pub. Laws 550, “divide[s Cranston] into six wards in such a manner that ... all wards shall contain as nearly as possible an equal number of inhabitants as determined by the most recent federal decennial census,” Cranston, R.I., City Charter § 2.03(b). “Each ward elects one representative to the City Council and one to the School Committee,” and all six wards collectively elect “three at-large city councilors and one at-large school committee member.” Davidson v. City of Cranston, — F.Supp.3d -, -, No. 14-91L, 2016 WL 3008194, at *1 (D.R.I. May 24, 2016).

The U.S. Census “serves as a linchpin of the federal statistical system.” Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 341, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (citation omitted). Since 1790, the Census has produced its total-population counts by counting each person where he or she “usually resides,” see Act of Mar. 1, 1790, § 5, 1 Stat. 101, 103, and from 1850 to the present the Census has continually refined its “usual residence” rule for determining where to count persons. Currently, “usual residence” is defined as “the place where [persons] live and sleep most of the time.” 2020 Decennial Census Residence Rule and Residence Situations, 80 Fed. Reg. 28950 (May 20, 2015).

The 2010 Census data used by Cranston in its 2012 Redistricting Plan, the most recent such plan, included in its population count for the City 3,433 inmates of the ACI. The ACI, “which is located on a state-operated campus,” Davidson, — F.Supp.3d at -, 2016 WL 3008194, at *2, is Rhode Island’s sole state prison. Although the ACI makes “most requests for police services [to] the State Police, which maintains an office at the ACI,” “the Cranston police occasionally deliver a prospective inmate to the prison.” Id. at -, 2016 WL 3008194, *2. The ACI also depends on Cranston’s roads and sewage system, as well as on the City’s fire department for emergency services.

The City’s population in the 2010 Census was 80,387, and each of the City’s six wards includes approximately 13,500 persons, with a “total maximum deviation among the population of the six wards [of] less than ten percent.” Id. at -, 2016 WL 3008194, *1. The 3,433 ACI inmates were counted by the City as part of the 13,642 members of Ward. Six. If the inmates were not included, Ward Six would contain only 10,209 persons, and the maximum deviation among the population of the wards would be approximately thirty-five percent.

“[D]emographic experts retained by the parties” testified that “153 or 155 [ACI] prisoners came from Cranston at the time of the Census,” and that “[eighteen of those had pre-incarceration addresses located in Ward Six.” Id. The plaintiffs’ demographic expert also testified that “the median length of stay for those serving a sentence at the ACI is 99 days,” and that “[t]he median stay for those awaiting tidal is three days.” Id. at -, 2016 WL 3008194, *2.

Those inmates at the ACI not imprisoned for felonies may vote by absentee ballot in their pre-incarceration communities, provided that they meet that community’s absentee-ballot requirements. The Rhode Island Constitution forbids felons to vote while incarcerated, R.I. Const, art. II, § 1, but under Rhode Island law, non-felon inmates may vote at their “fixed and established domicile,” the location of which is unaffected by their incarceration, 17 R.I. Gen. Laws § 17-l-3.1(a), (a)(2). Taking into account testimony that “approximately 37% of the [ACI] population is serving a felony sentence,” the district court estimated that only “six [or] seven inmates ... could be eligible to vote in Ward Six.” Davidson, — F.Supp.3d at -, 2016 WL 3008194, at *2.

In February 2014, four residents of Cranston and the American Civil Liberties Union of Rhode Island filed a complaint against the City under 42 U.S.C., § 1983 for declaratory and injunctive relief alleging that Cranston’s 2012 Redistricting Plan violates the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs argued that the inclusion of the ACI inmates in Ward 6 “inflates the voting strength and political influence of the residents in Ward 6 and dilutes the voting strength and political influence of Plaintiffs and other persons residing outside of Ward 6,” thereby violating the equal protection principle of “one person, one vote.” The City filed a motion to dismiss the complaint in March 2014, which the district court denied in September 2014. Davidson v. City of Cranston, 42 F.Supp.3d 325 (D.R.I. 2014). The parties then filed cross motions for summary judgment in July and August of 2015.

In May 2016, the district court denied the City’s motion for summary judgment and granted summary judgment to the plaintiffs. It held that the City’s inclusion of the ACI inmates in its Redistricting Plan violated the principle of “one person, one vote” as consistently articulated by the Supreme Court, notwithstanding its recent decision in Evenwel v. Abbott. Davidson, — F.Supp.3d at -, 2016 WL 3008194, at *3-4. Rejecting the City’s argument “that Evenwel stands simply for the constitutional propriety of drawing district lines based on Census population data,” the district court instead stressed “the Supreme Court’s emphasis on the conceptual basis of representational equality.” Id. at -, 2016 WL 3008194, *4.

The district court concluded that “[t]he inmates at the ACI share none of the characteristics of the [historically nonvoting] constituencies [such as women, children, slaves, taxpaying Indians, and non-landholding men] described by the Supreme Court” and found by the Court to deserve representation in apportionment. Id. The district court found that the inmates have no interest in Cranston’s public schools, receive few services from the City, and have no contact with Cranston’s elected officials. Id. The court further emphasized that the “inmates are different from other groups of non-voting residents of Cranston,” including “college students and military personnel.”' Id. Unlike those non-voting residents, many of the inmates are forbidden by law from voting in Cran-ston.

And though college students “are most certainly affected by municipal regulations,” the court concluded that the ACI inmates have no stake in the local political process. Id. The court noted that, “were the Cranston City Council to enact any ordinance bearing on the treatment of inmates or other conditions at the ACI, it would no doubt be preempted by state law and therefore unenforceable.” Id. These distinctions, the court reasoned, rendered Evenwel’s general approval of districting based on Census data inapplicable to the inclusion of prisoners in redistricting population counts. Id.

The district court found support for its holding in Calvin v. Jefferson County Board of Commissioners, 172 F.Supp.3d 1292, No. 4:15CV131-MW/CAS, 2016 WL 1122884 (N.D. Fla. Mar. 19, 2016), a case decided shortly before Evenwel. Davidson, — F.Supp.3d at -, 2016 WL 3008194, at *5. In Calvin, the court held that the Equal Protection Clause barred Jefferson County from including prisoners from the Jefferson Correctional Institution, a state prison, in its redistricting population count. 172 F.Supp.3d at 1325, 2016 WL 1122884, at *28. The Calvin court reached this conclusion because the prisoners “comprise a (1) large number of (2) nonvoters who (3) lack a meaningful representational nexus with the [County] Boards, and ... [are] (4) packed into a small subset of legislative districts.” Id. at 1315, 2016 WL 1122884, *19. As a result, the inclusion of the prisoners unconstitutionally diluted the voting power of those in other County districts. Id. at 1323, 2016 WL 1122884, *26.

The district court found that Calvin’s reasoning applied with full force to Cran-ston’s similar inclusion of the ACI prisoners in its Redistricting Plan. Davidson, — F.Supp.3d at -, 2016 WL 3008194, at *5i It granted summary judgment to the plaintiffs; entered declaratory judgment on behalf of the plaintiffs; enjoined the City, the City Council, and the City’s Board of Canvassers “from holding further elections under the current ward districting plan”; and ordered the City Council to “propose a [new] districting plan that complies with this Order” within thirty days. Id. at 11, 2011 WL 4346673, *6. The court vacated its declaratory judgment in a separate order. Cranston then filed this timely appeal.

II.

Before addressing the merits of the City’s appeal, we must ask whether we have jurisdiction to hear it. The parties agree that we have jurisdiction, but partly dispute its source and the resulting standard of review.

The City argues that we have jurisdiction pursuant both to 28 U.S.C. § 1291, which grants us jurisdiction over “appeals from all final decisions of the district courts of the United States,” and to 28 U.S.C. ■§ 1292(a)(1), which grants us jurisdiction over “[interlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” The City argues that the district court’s “order was final for all practical purposes because, based on the District Court’s findings of fact and conclusions of law, the City’s apportionment was deemed unconstitutional,” and that accordingly the proper standard is the de novo review we give to “cross motions for summary judgment.” See Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 61 (1st Cir. 2000) (standard of review for appeal from summary judgment is de novo).

The plaintiffs argue that because “the district court entered but then vacated a judgment in a separate document .., there is no final judgment allowing appellate jurisdiction under 28 U.S.C. § 1291.” See Fed. R. Civ. P. 58(a). Instead, the plaintiffs contend that our only avenue for review is our jurisdiction over interlocutory appeals under § 1292. The plaintiffs contend that review under § 1292 triggers a deferential abuse of discretion standard.

This disagreement is less significant than it seems. Whether or not the district court’s judgment could be treated as “final” for purposes of § 1291, we are satisfied that the injunctive relief the district court granted allows us to review Cranston’s appeal under § 1292. See Small v. Wageman, 291 F.2d 734, 735 n.1 (1st Cir. 1961) (“Since the appeal is from an order of the District ■ Court granting an injunction, this court clearly has appellate jurisdiction under Title 28 U.S.C. § 1292(a)(1).”). While the plaintiffs take the position that “[a]n appeal from interlocutory relief is reviewed for abuse of discretion,” this statement is overbroad. The cited cases actually stand for the narrower proposition that the abuse of discretion standard applies, to a district court’s decision on a request for a preliminary injunction.

This appeal arises from a permanent injunction that necessarily rests upon an actual adjudication of the merits. That adjudication, in turn, was entered summarily under Rule 56, rather than after a trial. Cranston’s challenge is to the merits of the district court’s summary judgment ruling. Accordingly, our review is de novo. See Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 428 (1st Cir. 2000) (“Our review of the entry of summary judgment is de novo.”); Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 678 (1st Cir. 1994) (stating, in an interlocutory appeal, that a permanent injunction could “stand only if the court properly awarded summary judgment,” and applying a de novo standard of review). Further, the issue presented is one of law, engendering - de novo review. Esso Standard Oil Co. v. Lopez-Freytes, 522 F.3d 136, 142 (1st Cir. 2008).

III.

It is • true that Evenwel did not decide the precise question before us. Nevertheless, we hold that its methodology and logic compel us to hold in favor of Cranston. Evenwel dictates that we look at constitutional history, precedent, and settled practice. 136 S.Ct. at 1126. Doing so leads us to find the inclusion of the ACI prisoners in Ward Six constitutionally permissible. In particular, Evenwel did not disturb Supreme Court precedent that apportionment claims involving only minor deviations normally require a showing of invidious discrimination, which has not even been alleged here. Without such a showing of discrimination, Evenwel reinforces that federal courts must give deference to decisions by local election authorities related to apportionment. Finally, the Evenwel Court gave general approval to the use of total-population data from the Census in apportionment, which is what Cranston used here. Application of these principles requires us to uphold the constitutionality of Cranston’s decision to include the ACI inmates in Ward Six.

Evenwel rejected an equal protection challenge to the use of total-population data from the 2010 Census to redraw Texas’s State Senate districts. Id. at 1125. The resulting districting map’s “maximum total-population deviation [among districts was] 8.04%, safely within the presumptively permissible 10% range.” Id.; see also Brown v. Thomson, 462 U.S. 835, 842-43, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (establishing ten-percent range). “But measured by a voter-population baseline — eligible voters or registered voters — the map’s maximum population deviation exceeded] 40%.” Evenwel, 136 S.Ct. at 1125. Plaintiffs from “Texas Senate districts ... with particularly large eligible- and registered-voter populations” sued, “[c]ontending that basing apportionment on total population dilute[d] their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause.” Id. The basic theory of them complaint was that the Constitution’s one-person, one-vote principle, first announced and applied to state governments in Reynolds v. Sims, 377 U.S. 533, 560-61, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and later applied to local governments in Avery v. Midland County, 390 U.S. 474, 484-86, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), requires that political bodies use voter population, rather than total population, in apportionment. Evenwel, 136 S.Ct. at 1125-26. A three-judge district-court panel had dismissed the complaint, holding that “[djecisions of [the Supreme] Court ... permit jurisdictions to use any neutral, nondiscriminatory population baseline, including total population, when drawing state and local legislative districts.” Id. at 1126.

The Supreme Court affirmed. The Court examined “constitutional history,” id. at 1127-30, precedent, id. at 1130-32, and “settled practice,” id. at 1132. After reviewing historical materials, the Court concluded that “it remains beyond doubt that the principle of representational equality figured prominently in the decision to count people, whether or not they qualify as voters.” Id. at 1129. Likewise, the Court’s precedents “suggested[ ] repeatedly[ ] that districting based on total population serves both the State’s interest in preventing vote dilution and its interest in ensuring equality of representation.” Id. at 1131. The Court observed that “[a]dopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” Id. at 1132. Moreover, the Court rejected the more general notion that nonvoters are not a significant population for apportionment:

Nonvoters have an important stake in many policy debates — children, them parents, even their grandparents, for example, have a stake in a strong public-education system — and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation.

Id.

Several principles emerge from Even-wel. First, the Court did not disturb precedents holding that, where Reynolds’s requirements of population-based apportionment are met, a plaintiff usually must show invidious discrimination to make out an apportionment claim under the Equal Protection Clause. The Court has made it clear elsewhere that: .

Where the requirements of Reynolds v. Sims are met, apportionment schemes ... will constitute an invidious discrimination only if it can be shown that “designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.”

Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) (quoting Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965)); see also Gaffney v. Cummings, 412 U.S. 735, 754, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (“As we have indicated, for example, multimem-ber districts may be vulnerable [to constitutional challenge], if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.”). Here, thére is no showing, nor even a claim, that either racial or political groups have been fenced out of the process in Cranston.

The Court has further emphasized in the context of state-level apportionment that “minor deviations from mathematical equality among ... districts are insufficient to make out a prima facie case of invidious discrimination,” Brown, 462 U.S. at 842, 103 S.Ct. 2690 (quoting Gaffney, 412 U.S. at 745, 93 S.Ct. 2321), and that “as a general matter, ... an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations,” id. Again, the plaintiffs have made no claim that Cran-ston’s redistricting works any invidious discrimination.

Second, Evenwel reinforced the principle established by earlier Supreme Court decisions that courts should give wide latitude to political decisions related to apportionment that work no invidious discrimination. It has long been constitutionally acceptable, but by no means required, to exclude non-voting persons such as “aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime [from] the apportionment base,” Burns, 384 U.S. at 92, 86 S.Ct. 1286, so long as the apportionment scheme does not involve invidious discrimination, id. at 89, 86 S.Ct. 1286. The Court has repeatedly cautioned that such decisions, absent any showing of discrimination, “involve[ ] choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” Id. at 92, 86 S.Ct. 1286; see also Brown, 462 U.S. at 847-48, 103 S.Ct. 2690 (“Particularly where there is no ‘taint of arbitrariness or discrimination,’ substantial deference is to be accorded the political decisions of the people of a State acting through their elected representatives.” (citation omitted) (quoting Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964))). Cranston’s Redistricting Plan, accordingly, is entitled to deference.

Third, Evenwel approved the status quo of using total population from the Census for apportionment. The Court underlined that point when it observed that “in the overwhelming majority of cases, jurisdictions have equalized total population, as measured by the decennial census. Today, all States use total-population numbers from the census when designing congressional and state-legislative districts, and only seven States adjust those census numbers in any meaningful way.” 136 S.Ct. at 1124. The Court further noted that only four states (California, Delaware, Maryland, and New York) “exclude inmates who were domiciled out-of-state prior to incarceration.” Id. at 1124 n.3 (citing Cal. Elec. Code § 21003(a)(5); Del. Code Ann. tit. 29, § 804A; Md. Code Ann., State Gov’t § 2-2A-01; and N.Y. Legis. Law § 83-m(13)(b)).

It is implausible that the Court would have observed that the majority of states use unadjusted total population (including , prisoners) from the Census for apportionment, upheld the constitutionality of apportionment by total population as a general proposition, and yet implied that the inclusion of prisoners in total .population for apportionment, without any showing of discrimination, is constitutionally suspect. The more natural reading of Ev-enwel is that the use of total population from the Census for apportionment is the constitutional default, but certain deviations are permissible, such as the exclusion of non-permanent residents, inmates, or non-citizen immigrants. See Evenwel, 136 S.Ct. at 1124 n.3, 1132-33; see also Burns, 384 U.S. at 92, 86 S.Ct. 1286 (recognizing that these decisions belong to state legislatures). Those permissible deviations are just that — optional, but not the norm. The norm, as practiced by the large majority of states, is to district based on total-population data from the Census, which includes prisoners. Evenwel held this approach to be “plainly permissible.” 136 S.Ct. at 1126. For the past half-century, Cranston has chosen to use this “plainly permissible” method for its districting.

We also note the risks inherent in the plaintiffs’ theory. The district court’s reading of Evenwel would turn one of the arguably permissible adjustments to total-population data Evenwel described briefly in a footnote — the exclusion of prisoners with domiciles out of state — into a constitutional requirement even for in-state prisoners. Plaintiffs’ analysis invites federal courts to engage in what have long been recognized as paradigmatically political decisions, best left to local officials, about the inclusion of various categories of residents in the apportionment process.

We decline that invitation. The decision whether to include or exclude the ACI prisoners in (Cranston’s apportionment is one for the political process. This conclusion becomes more obvious when one considers the unusual nature of the plaintiffs’ vote-dilution claim. The plaintiffs claim that the overwhelming majority of Cran-ston’s population (more than 66,000 of its approximately 80,000 residents) has incrementally diluted its own voting power by inflating the voting power of voters in Ward Six. That majority, which controls at least five of Cranston’s nine city councilors, may reverse its own decision if it sees fit.

Under the logic of Evenwel and the Supreme Court’s earlier apportionment jurisprudence, Cranston’s 2012 Redistricting Plan easily passes constitutional muster. As mandated by the City’s charter, which mirrors the total-population apportionment required by Rhode Island’s constitution, the Redistricting Plan is based on total population from the Census. It contains a maximum population deviation of less than ten percent. And there is no evidence that the . plan works any invidious discrimination. Cranston’s longstanding tradition of districting by total population based on the Census aligns with the practice of the large majority., of states,. which Evenwel endorsed. ;

The plaintiffs advance other arguments in support of affirmance, but they fare no better than the district court’s reading of Evenwel. The plaintiffs contend that the City’s Redistricting Plan violates the Equal Protection Clause because “Supreme Court precedent establishes that jurisdictions may not blindly or conclusively rely upon Census numbers when drawing their districts, but rather must look to the realities on the ground' when seeking to achieve representational equality.” But the cases they cite for this proposition involve facts easily distinguishable from those of this appeal.

Plaintiffs cite to Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970), which involved an unconstitutional exclusion from Maryland’s voting rolls of persons who lived on a federal enclave in Maryland. The case does not speak to a city’s inclusion of inmates residing in a state-operated prison facility located within the city.

In Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320, modified in part, 411 U.S. 922, 93 S.Ct. 1475, 36 L.Ed.2d 316 (1973), the Virginia state legislature divided the cities of Virginia Beach and Norfolk into three districts each calculated to have an equal population and a single senatorial representative. In calculating the supposedly equal districts, however, the state relied on Census data-to assign to one district roughly 18,000 military personnel who lived in the' adjoining districts,- thereby diluting the votes of the military personnel.- In those “unusual, if not- unique, circumstances,” the Court affirmed a decision requiring reapportionment in order to eliminate “discriminatory treatment” of the military personnel. Id. at 331-32, 93 S.Ct. 979. Here, plaintiffs advance no claim that the state legislature has diluted their votes in a manner that implicates a comparable consideration of discriminatory treatment.

There has been no allegation that the Census has mistakenly assigned the ACI inmates to a place that was not their residence at the time the Census was conducted, nor has there been any allegation that the assignment resulted in “discriminatory treatment” of the inmates or any other party. The inclusion of the prisoners in the 2010 Census data for the City affords a presumptively valid reason for including them in the City’s Redistricting Plan. Nothing argued by the plaintiffs or found by the district court casts doubt on that presumptive validity.

Ultimately, the plaintiffs’ arguments and the reasoning of the district court are hard to distinguish from the “voter population” argument rejected in Evenwel. This is most obvious when the plaintiffs and the district court emphasize that although the maximum deviation of total population in Cranston’s wards is less than ten percent when one' includes the ACI inmates in Ward Six, that figure leaps to thirty-five percent if one excludes the ACI prisoners in Ward Six. See Davidson, — F.Supp.3d at -, 2016 WL 3008194, at *1. Like the disparities in voter population complained of by the Evenwel plaintiffs, this argument begs the question. The Constitution does not require Cranston to exclude the ACI inmates from its apportionment process, and it gives the federal courts no power to interfere with Cranston’s decision to include them.

IV.

The order of the district court is reversed, and the case is remanded with instructions to enter summary judgment for the City of Cranston.

      . To be clear, this case is not about the right of the ACI inmates to vote. Cranston argues that the district court "reached the erroneous legal conclusion that [state law] forbids ACI inmates from registering to vote in Cranston.” The City contends that, like other persons, the ACI inmates may "establish a new voting domicile” in Cranston under the general standards set by Rhode Island law. See R.I. Const, art. II, § 1 ("Every citizen of the United States of the age of eighteen years or over who has had residence and home in this state for thirty days next preceding the time of voting, who has resided thirty days in the town or city from which such citizen desires to vote, and whose name shall be registered at least thirty days next preceding the time of voting as provided by law, shall have the right to vote for all offices to be elected...17 R.I. Gen. Laws § 17-1-3.1(a) (“The determinant of one’s domicile is that person's factual physical presence' in the voting district on a regular basis incorporating an intention to reside for an indefinite period.”); In re Op. of the Justices, 65 R.I. 451, 16 A.2d 331, 332 (1940). This contention, if true, would in turn cast doubt on the district court’s low estimate of eligible voters.
      We need not resolve this issue. Even assuming that the district court’s estimate of voter-eligible ACI inmates is accurate, its conclusion that the Constitution requires Cranston to exclude the ACI inmates still does not follow.

      . The plaintiffs' vote-dilution claim is distinct from a different claim advanced by amici curiae NAACP et al., who have argued that Cranston’s inclusion of the ACI prisoners in Ward Six is an example of "prison-based gerrymandering, which ... significantly and im-permissibly weakens the political power of communities of color" elsewhere in the state. This hypothetical claim is that the inclusion of minority ACI inmates in the Redistricting Plan dilutes the political power of the communities of color where the prisoners resided pre-incarceration. The claim is simply not advanced by the plaintiffs in this case, and we will not hear new claims from amici. See González-Droz v. González-Colón, 660 F.3d 1, 12 n.6 (1st Cir. 2011). To the degree amici advance a policy argument, such an argument should be addressed to the Rhode Island legislature.

      . Cranston also challenges the district court’s factual findings concerning the ACI inmates’ "representational nexus” to the City. Because we find Cranston's challenge to the district court’s legal analysis dispositive, we do not reach its challenge to the district court’s factual findings.

      . Several past directors of the United States Census Bureau have submitted an amicus brief arguing that “the usual residence rule and the Census Bureau’s determination of where to count persons for census purposes are not designed to answer the question of where those persons should be counted for redistricting purposes,” particularly in the case of incarcerated individuals. That may well be the case. But it does not follow that a town errs in itself relying on census data to determine population in the absence of any unusual circumstances not presented here.

      . To our knowledge, the Supreme Court has never adopted a "representational nexus” analysis. ■ ■

      . The Census data assigned all personnel to the location of their ship'berths. Id. at 330 n.11, 93 S.Ct. 979.

      . Likewise, in Hartung v. Bradbury, 332 Or. 570, 33 P.3d 972, 986-87 (2001) (en banc), the Oregon Supreme Court held that the Oregon Secretary of State had incorrectly relied on Census data that assigned the inmates of a federal prison- to the wrong Census block after the inaccuracy had been brought to his attention. The court’s holding on this challenge was articulated 'primarily1 on state-law grounds, and the court, "stress[ed] that this holding is limited to the particular circumstances of this' case. We do not suggest that the Secretary of State always must question census data or that the Secretary of State must investigate simply on the allegation that the Census Bureau made an error.” Id. at 987 n.26.


author: PER CURIAM:

text:
    CHESAPEAKE ENERGY CORPORATION, Plaintiff-Appellant, v. BANK OF NEW YORK MELLON TRUST COMPANY, N.A., Defendant-Appellee.
    No. 15-2366-cv
    August Term 2015
    United States Court of Appeals, Second Circuit.
    Argued: June 13, 2016
    Decided: September 15, 2016

      Paul M. Smith, Jenner & Block LLP, Washington, DC (Richard F. Ziegler, Stephen L. Ascher, Elizabeth A. Edmondson, Jenner & Block LLP, New York, NY, on the brief), for Plaintiff-Appellant.
    Roy T. Englert, Jr. (Mark T. Stancil, Jeremy C. Baron, Danielle B. Rosenthal, on the brief), Robbins, Russell,' Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, for Defendant-Appellee.
    Before: CABRANES, LOHIER, and CARNEY, Circuit Judges.
   PER CURIAM:

The principal question presented is whether the District Court correctly determined the measure of compensation due to Noteholders, represented by defendant-appellee Bank of New York Mellon Trust Company, N.A. (“BNY Mellon”), arising from the underpayment to the Noteholders by plaintiff-appellant Chesapeake Energy Corporation (“Chesapeake”) in connection with Chesapeake’s early redemption of the Notes on May 13, 2013. See Chesapeake Energy Corp. v. Bank of N.Y. Mellon Tr. Co. (Chesapeake III), No. 13 Civ. 1582 (PAE), 2015 WL 4191419 (S.D.N.Y. July 10, 2015). We conclude that it did.

Accordingly, substantially for the reasons set forth in the District Court’s thorough July 10, 2015 opinion, we AFFIRM the judgment of the District Court.

BACKGROUND

At the outset, we note that, a thorough account of-the facts and procedural history of the case — which are entwined — can be found in the past opinions by our Court and the District Court in this case. See Chesapeake Energy Corp. v. Bank of N.Y. Mellon Tr. Co. (Chesapeake II), 773 F.3d 110 (2d Cir. 2014); Chesapeake Energy Corp. v. Bank of N.Y. Mellon Tr. Co. (Chesapeake I), 957 F.Supp.2d 316 (S.D.N.Y. 2013), rev’d, Chesapeake II, 773 F.3d at 112; see also Chesapeake III, 2015 WL 4191419. We therefore assume the readers’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Nevertheless, we pause to briefly recount the key facts and procedural history necessary to explain our decision to affirm.

In February 2012, Chesapeake, a publicly traded oil-and-natural-gas producer, issued $1.3 billion in senior notes due March 15, 2019, bearing an interest rate of 6.775 percent (the “Notes”). The Notes were governed by a Base Indenture as well as a Supplemental Indenture, the latter of which is especially relevant to this appeal. Indeed, the Supplemental Indenture established two types of early redemption rights, exercisable at Chesapeake’s option, that have been central to this case. ■

Section 1.7(b) of the Supplemental Indenture provided in pertinent part that

At any time from and including November 15, 2012 to and including March 15, 2013 (the “Special Early Redemption ’Period”), .., [Chesapeake], at its option, may redeem the Notes ... for a price equal to 100% of the principal amount ... plus accrued and unpaid interest on the Notes to be redeemed to the date of redemption [the “At-Par Price”].... [Chesapeake] shall be permitted to exercise its option ... so long as it gives the notice of redemption pursuant to Section 3.04 of the Base Indenture during the Special Early Redemption Period.

J.A. 567. In turn, Section 3.04 of the Base Indenture required that Chesapeake give the notice of redemption at least 30 days but not more than 60 days before the date of redemption. J.A. 656.

Separately, Section 1.7(c) of the Supplemental Indenture provided in pertinent part that “[a]t any time after March 15, 2013 to the Maturity Date, [Chesapeake], at its option, may redeem the Notes ... for an amount equal to the Make-Whole Price plus accrued and unpaid interest to the date of redemption.... ” J.A. 567. The Make-Whole Price was defined to mean the sum of the present value of the principal of the Notes and remaining interest payments. J.A. 574.

On February 20, 2013, Chesapeake announced that it planned to exercise its right of redemption pursuant to Section 1.7(b) of the Supplemental Indenture — for the At-Par Price. BNY Mellon notified Chesapeake, however, that, in its view, the notice deadline for a redemption under Section 1.7(b) had already passed. In the view of BNY Mellon, Chesapeake was required to give at least 30 days’ notice before March 15, 2013 to redeem “At Par” under Section 1.7(b). BNY Mellon further warned Chesapeake that it might, as indenture trustee, treat a prospective redemption as requiring payment of the Make-Whole Price under Section 1.7(c), due to the redemption’s tardiness under Section 1.7(b). On March 8, 2013, Chesapeake filed an action against BNY Mellon in the District Court seeking a declaratory judgment on two counts: that (1) its Notice of Redemption attached to its complaint would be timely under Section 1.7(b) to redeem “At Par” if mailed by March 15, 2013, and would be effective on May 13, 2013; and (2) in the event that the Notice is determined not to be timely, or if the District Court has not ruled by the May 13 redemption date, the Notice shall be deemed null’ and void (rather than deemed to trigger redemption at the Make-Whole Price). Chesapeake issued its Notice of Redemption on March 15,2013.

On May 8, 2013, following a bench trial, the District Court ruled that the Notice of Redemption was timely under Section 1.7(b), and the District Court therefore entered judgment in favor of Chesapeake on its first count. See Chesapeake I, 957 F.Supp.2d at 374. As a result of that decision, the District Court ruled that Chesapeake’s second count was moot. Id. BNY Mellon filed a notice of appeal on May li, 2013. Two days later, on May 13, 2013, Chesapeake proceeded with its early redemption, paying the Noteholders approximately $1.3 billion pursuant to Section 1.7(b) of the Supplemental Indenture. The completion of this redemption, however, did not conclude this litigation.

On November 25, 2014, this Court reversed the District Court’s May 8, 2013 judgment in favor of Chesapeake on its first count, holding that Chesapeake’s Notice of Redemption was untimely to -effect an “At Par” redemption under Section 1.7(b) of the Supplemental Indenture. See Chesapeake II, 773 F.3d at 117. We remanded the cause to the District Court for consideration of Chesapeake’s second count, however, which had requested a declaratory judgment that Chesapeake had not noticed a redemption at the Make-Whole Price. See id.

The subject of the instant appeal is the District Court’s July 10, 2015 decision on remand from this Court. First, the District Court determined that the second count of Chesapeake’s complaint remained moot insofar as it sought nullification only of Chesapeake’s notice of redemption; but had no bearing on the redemption itself, which had already been completed. See Chesapeake III, 2015 WL 4191419, at *5-6. Second, the District Court, after receiving briefing from the parties, awarded the Noteholders contract-based damages in the amount of the difference between the At-Par Price that Chesapeake had already paid to the Noteholders for the redemption and the Make-Whole Price that Chesapeake should have paid, equal to $379,650,133.21, plus prejudgment interest, for a total of $438,717,561.67. Id. at *18. The District Court entered judgment on July 13, 2015, and entered an amended judgment on July 17, 2015. This appeal followed.

DISCUSSION

On appeal, Chesapeake principally contends that the District Court erred by awarding contract-based damages — calculated based on the difference between the At-Par Price and the Make-Whole Price— and that thé District Court should instead have awarded restitution to the Notehold-ers for Chesapeake’s underpayment. Chesapeake argues that “federal law is clear that the remedy for actions taken in reliance on a judgment-that is later reversed is restitution putting the note holders back in the same economic position they occupied before the redemption, not a claim for breach of contract.” Pl. Br. 2; see id. at 21-43. Chesapeake refers to this principle as “the long-established do'ctrine "of restitution after reversal.” Id. at 3. Chesapeake further argues that, “even applying a contract-based analysis, the district court should have ended up at the same place because under New York law it was flatly improper to treat the Make-Whole Price as the measure of contract damages.” Id. at 2; see id. at 43-58. We disagree in both respects.

Substantially for the reasons set forth in the District Court’s thorough July 10, 2015 opinion, see generally Chesapeake III, 2015 WL 4191419, at *7-17, we conclude that the District Court correctly determined the measure of compensation due to the Noteholders in the circumstances presented. We summarize those reasons as follows.

Under New York law, as the District Court explained, an indenture like the one at issue here is a form of contract. See, e.g., Bank of N.Y. Tr. Co. v. Franklin Advisers, Inc., 726 F.3d 269, 276 (2d Cir. 2013); Quadrant Structured Prods., Co. v. Vertin, 23 N.Y.3d 549, 559, 992 N.Y.S.2d 687, 16 N.E.3d 1165 (2014). And where a valid and enforceable contract governs the relevant subject matter of the parties’ dispute, the contract — rather than principles of restitution — should determine the measure of a party’s recovery for events arising from that subject matter. See, e.g., MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 157 F.3d 956, 964 (2d Cir. 1998) (observing that, under “well-settled principles of New York law.... the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract ... for events arising out of the same subject matter” (internal quotation marks omitted)); Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987) (“It is impermissible ... to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties.”). The cases relied upon by Chesapeake do not hold otherwise.

Here, applying New York law, Section 1.7 of the Supplemental Indenture — a contract Chesapeake does not contend was invalid or unenforceable — dictates the Noteholders’ recovery arising from Chesapeake’s underpayment for its May 13, 2013 redemption. Indeed, properly framed, the relevant subject matter of the parties’ dispute is the measure and amount of compensation Chesapeake should have paid the Noteholders for its early redemption. Section 1.7 governed this subject matter, specifying the price Chesapeake was required to pay the Noteholders for an early redemption, which in turn depended on the date of the redemption. See J.A. 567. Whereas Section 1.7(b)’s At-Par Price applied to redemptions on or before March 15, 2013, Section 1.7(c)’s Make-Whole Price applied to redemptions after March 15, 2013. See id. Because Chesapeake completed its redemption on May 13, 2013, it owed the Noteholders the Make-Whole Price for that redemption, pursuant to Section 1.7(c), see id. and it breached the Supplemental Indenture by paying only the At-Par Price. The correct damages award, then, was the difference between the At-Par Price and the Make-Whole Price, plus prejudgment interest.

To hold otherwise would frustrate the Noteholders’ legitimate expectations regarding their rights under the Supplemental Indenture. As the District Court explained, “[f|or the Court to fashion what amounts to a new type of redemption, with its pricing terms to be set post hoc by a Court with reference to equitable principles, would confound investors’ valid expectations.”' Chesapeake III, 2015 WL 4191419, at *12. Indeed, “[a]n investor could realistically not have anticipated the third scenario in which — if Chesapeake missed the deadline for a Special Early Redemption but redeemed in a good faith belief that it had met the deadline' — Noté-holders would receive an early-re'demption lump-sum payout materially smaller than the Make-Whole Amount.” Id. It follows, therefore, that “[t]he interest in respecting investors’ legitimate expectations ... supports a payout keyed to the indenture’s treatment of redemptions after March 15, 2013.” Id. at *13.

Chesapeake was similarly on notice at all relevant times that the District Court could require it to pay the Make-Whole Price for its May 13, 2013 redemption. Under the terms of the Supplemental Indenture, which we have previously held to be unambiguous and to have “a definite and precise meaning,” Chesapeake’s March 15, 2013 notice .calling for a redemption on May 13, 2013 “was untimely and ineffective to redeem” at the At-Par Price. Chesapeake II, 773 F.3d at 117. Moreover, Chesapeake knew that this had been BNY Mellon’s litigation position since the outset and had been confronted with the possibility that a holding by this Court that the redemption was untimely to effect a Special Early Redemption could trigger Chesapeake’s obligation to pay the Make-Whole Price on remand.

Finally, we reject Chesapeake’s contention that, even if the District Court properly awarded breach-of-contract damages, it erred by awarding compensation that allowed the Noteholders to recoup in excess of the value of the Notes before' the redemption, which Chesapeake argues is equal to “the present value of the lost interest [on the Notes] offset by the lower interest they would have earned from entering into similar transactions” on the date of the redemption. Pl. Br. 55. By analogy to bankruptcy cases where borrowers were forced to prepay loans, Chesapeake argues that, “under New York law, the relevant inquiry is not whether a contractual provision sets forth an amount to be paid for prepayment on a certain date, but whether the relevant contractual provisions clearly and unambiguously provide that the prepayment premium is payable for an unauthorized prepayment under the relevant circumstances.” Id at 50; But this syllogism relies on a false'premise: Chesapeake did not involuntarily exercise its right of redemption. Instead, Chesapeake opted to redeem early, albeit with the anticipation that it would pay only the At-Par Price. The cases relied upon by Chesapeake are thus inapposite.

In sum, we conclude, substantially' for the reasons set forth in the District Court’s July 10, 2015 opinion, which we have summarized here, that the District Court did not err in awarding the Note-holders the difference between the At-Par Price Chesapeake had already paid for its redemption and the Make-Whole Price it should have paid, plus prejudgment interest.

CONCLUSION

For the foregoing reasons, we AFFIRM the July 17, 2015 judgment of the District Court.

      . "J.A.'' refers to the Joint Appendix.

      . Chesapeake does -not challenge this ruling on appeal.

      . The District Court exercised its authority under 28 U.S.C. §2202 of the Declaratory Judgment Act to grant ‘‘[fjurther necessary or proper relief based on [its] declaratory judgment ... against any adverse party whose rights [had] been determined by such judgment.” 28 U.S.C. §2202. Chesapeake, which had originally filed the action for declaratory ' judgment, but against whom the relief was granted, does not argue on appeal that the District Court erred in holding that §2202 was the proper procedural mechanism for awarding compensation to the Noteholders,

      . Section 2(2) of the Restatement (Third) of Restitution and Unjust Enrichment observes that ‘‘[a] valid contract defines the obligations of the parties as to matters within its scope, displacing to that extent any inquiry into unjust enrichment.” Restatement (Third) of Restitution and Unjust Enrichment § 2(2) (Am. Law Inst. 2011). Contract-based remedies are superior to restitution, the Restatement explains, because a contract “eliminates, or minimizes, the fundamental difficulty of valuation. ... [T]he parties’ own definition of their respective obligations ... take[s] precedence over the obligations drat the law would impose in the absence of agreement. Restitution is accordingly subordinate to contract as an organizing principle of private relationships, and the terms of an enforceable agreement normally displace any claim of unjust enrichment within their reach.” Id. § 2, cmt. c.

      . For example, the principal case involving a contract that Chesapeake relies upon is Northwestern Fuel Co. v. Brock, where the Supreme Court upheld an award of restitution to defendants who had paid breach-of-contract damages to a plaintiff pursuant to a judgment that the trial court had no jurisdiction to enter. 139 U.S. 216, 11 S.Ct. 523, 35 L.Ed. 151 (1891). The Court reasoned that the trial court had the power “to undo what it had no authority to do originally, and in which it, therefore, acted erroneously, and to restore, so far as possible, the parties to their former position.” Id. at 219, 11 S.Ct. 523. But Brock did not hold that restitution should displace the parties’ contract rights and obligations. And whereas restitution was necessary in Brock to "undo” the trial court’s erroneous judgment, restitution is unnecessary and inappropriate here, where the Supplemental Indenture determined the price of the redemption. Cf. Restatement (Second) of Contracts § 373(2) (Am. Law Inst. 1981) ("The injured party has no right to restitution if he has performed all of his duties under the contract and no performance by the other party remains due other than payment of a definite sum of money for that performance,’’).

      . Although not explicitly contested by the parties on appeal, the District Court’s calculation of prejudgment interest correctly used the 6.775 percent rate applicable to overdue payments under the Base and Supplemental Indentures. See Chesapeake III, 2015 WL 4191419, at *18.

      . For example, during a March 19, 2013 com ference, the District Court asked counsel for Chesapeake what would happen if the District Court ruled that Chesapeake’s redemption was timely to effectuate a Special Early Redemption but the ruling was later reversed on appeal. The District ‘ Court queried whether "the only way to make [the Noteholders] whole [would be] to in effect pay them what amounts to the present value ... in effect giving [them] the make-whole value through the backdoor.” J.A. 301. Counsel for Chesapeake responded, “[C]ertainly I don’t think the Court will give the noteholders the make-whole value through the backdoor,” to which the Court replied, “Well, you don’t think that. But I’m asking you to assume that the Court of Appeals disagrees with a ruling I make in your favor on timeliness and now wants to fashion a remedy. What is that remedy?” J.A. 301-02.


author: DEBRA ANN LIVINGSTON, Circuit Judge:

text:
    B.C.> individually and on behalf of her minor child J.C.; T.H., individually and on behalf of her minor child T.H. Plaintiffs-Appellants, v. MOUNT VERNON SCHOOL DISTRICT, et al., Defendants-Appellees.
    No. 14-3603-cv
    August Term 2015
    United States Court of Appeals, Second Circuit.
    Argued: August 26, 2015
    Decided: September 16, 2016
    See also — Fed.Appx. —, 2016 WL 4945421.

      Michael H. Sussman, Sussman & Watkins, Goshen, N.Y., for Plaintiffs-Appellants.
    Lewis R. SilveRman, Rutherford & Christie, LLP; New York, N.Y., for Defendants-Appellees Mount Vernon City School District, Mount Vernon City School District Board of Trustees, Dr. Welton Sawyer, and Shelly Jallow.
    Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Philip V. Tisne, Assistant Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York; New York, N.Y., for Defendants-Appellees New York State Education Department and Roberto Reyes.
    Before: WALKER, JACOBS, and LIVINGSTON, Circuit Judges.
   DEBRA ANN LIVINGSTON, Circuit Judge:

Plaintiffs-Appellants B.C. and T.H., individually and on behalf of their respective daughters J.C. and T.H. (collectively, “Plaintiffs”), brought this action in the United States District Court for the Southern District of New York (Briccetti, /.), asserting various claims against Defendants-Appellees the Mount Vernon School District; the District Board of Trustees; Dr. Welton Sawyer, the Superintendent of the District; Shelly Jallow, the Assistant Superintendent of Curriculum and Instruction of the District (collectively, “District Defendants”); the New York State Education Department (“NYSED”) and Roberto Reyes, Title I, School and Community Services Director of the NYSED (collectively, “NYSED Defendants”).

This opinion addresses one of Plaintiffs’ claims: that the district court erred in concluding that Plaintiffs did not make a prima facie showing of discrimination against the District Defendants pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. §794 et seq. Plaintiffs advance a disparate impact theory, relying on statistics showing that the District’s- academic intervention services (“AIS”) — non-credit bearing courses intended for students at risk of not meeting state performance standards — were offered to children with a “disability” under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., at a greater rate than to children without such a disability. Because the ADA and Section 504 define “disability” differently than does the IDEA, Plaintiffs present a question of first impression in this Circuit: whether an individual with a “disability” under the IDEA categorically qualifies as an . individual with a “disability” under the ADA and Section 504, such that Plaintiffs’ data relating to “child[ren] with a disability” under the IDEA, 20 U.S.C. § 1401(3)(A), can establish a prima facie case with respect to a claim predicated on the plaintiff having a “disability” under the ADA, 42 U.S.C. §12102(1), and Section 504, 29 U.S.C. § 705(20). We hold that it does not. A summary order filed simultaneously with this opinion addresses and rejects the balance of Plaintiffs’ claims on appeal. For the reasons stated below and in the accompanying summary order, we AFFIRM the district court’s judgment.

Back&round

I. Factual Background

A.

J.C., daughter of Plaintiff-Appellant B.C., was classified as a, child with a disability under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Pursuant to that Act, J.C. had an individualized education program (“IEP”) that set out certain guidelines for her public school instruction and specified the special education J.C. required. See 20 U.S.C. § 1401(14) (defining IEP); see also id. § 1414(d) (specifying IEP requirements). During the 2008-2009 school year, J.C. enrolled in the ninth grade at Mount Vernon High School, which is part of the Mount Vernon City School District. Her schedule consisted of seven classes, two of which were “Math AIS 9” and “English 9 AIS.” J.A. 327-28. J.C. had been designated to receive AIS based on scores from standardized tests that she took during the eighth grade. Due to their “remedial” nature, J.C.’s AIS courses were non-credit-bearing courses, meaning that they did not count towards the academic credits a student needed to advance to subsequent grades or to graduate. J.A. 349 at ¶ 14. The instruction in these courses took place in an integrated setting with both special education students and general education students.

To advance from the ninth grade to the tenth grade in the Mount Vernon City School District, a student needed six credits. Although J.C. passed all of her ninth grade courses, including her AIS courses, during her 2008-2009 school year, J.C. earned only four-and-a-half credits, reflecting the fact that her Math AIS and English AIS courses were non-credit-bearing courses. The following school year (2009-2010), J.C. transferred to Nellie A. Thornton High School, which is also part of the Mount Vernon City School District. When J.C.’s parent B.C. received J.C.’s class schedule at the beginning of the school year, she was “very much ... surprise[d]” to discover that the schedule noted that J.C. was enrolled in ninth grade because she had not earned sufficient credits during the 2008-2009 school year to be promoted to the tenth grade. J.A. 135. J.C,, meanwhile, was uncertain what grade she was in, “because one of [her] papers would say ninth grade-.and other papers would say tenth.” J.A. 173.

At the start of the 2009-2010 school year, J.C. was enrolled in “English 10 AIS” and “Math AIS 10,” among other courses. J.C.’s mother, however, insisted that J.C. be removed from the AIS courses and “placed immediately into additional credit bearing classes ... to ensure that [J.C.]- would amass enough credits that school year to qualify for the Eleventh Grade” the following year. J.A. 413. In August 2010, B.C.’s- counsel sent a formal complaint to Defendant Roberto Reyes, an official at the NYSED. Reyes agreed to conduct an investigation into B.C.’s complaints about the District’s AIS policy, promising to respond by October 15, 2010. According to B.C., however, no investigation occurred.

By the start of the 2010-2011 school year, J.C. had accrued sufficient credits to be classified as being in the eleventh grade. But in-March 2011, J.C. left Nellie A. Thornton High School and transferred to The Karafin School, which is not within the Mount Vernon City School District. J.C. completed eleventh grade and twelfth grade at The Karafin School, graduating from The Karafin School in the spring of 2012.

B.

T.H., daughter of Plaintiff-Appellant T.H., was classified as a child with a disability under the IDEA. Pursuant to that Act, T.H. had an IEP that set out certain guidelines for her public school instruction and specified when T.H. should receive special education. During the 2008-2009 school year, T.H; enrolled in the ninth grade at Nellie A. Thornton High School, which is part of the Mount Vernon City School District. Her schedule, like J.C.’s, consisted of seven classes, two of which were Math AIS 9 and English 9 AIS. As with J.C.’s AIS courses, T.H.’s AIS courses were noncredit-bearing courses, and they took place “in an integrated environment with undifferentiated instruction.” J.A. 21.

Although T.H. passed all of her ninth grade courses during the 2008-2009 school year, including her AIS courses, T.H. did not earn sufficient academic credits to "be promoted to the tenth grade because her AIS courses were non credit-bearing courses. J.A. 39. Despite the fact that, based on credits earned, T.H. should have been classified as in the ninth grade, the school enrolled T.H. in the tenth grade for the 2009-2010 school year. T.H. continued receiving English AIS courses during the 2009-2010 school year.

By the 2010-2011 school year, T.H. had earned sufficient credits to be classified as a tenth grader but not as an eleventh grader. T.H. did not take any AIS courses during the 2010-2011 school year. By the 2011-2012 school year, T.H. had earned sufficient credits to be classified as a twelfth grader. T.H. did not take any AIS courses during the 2011-2012 school year. In the spring of 2012, T.H. graduated from Nellie A. Thornton High School.

II. Procedural Background

On July 14, 2011, B.C. and T.H., individually and on behalf of their daughters, filed suit. Plaintiffs asserted various claims against the District Defendants and the NYSED Defendants under the ADA, Section 504, the IDEA, and 42 U.S.C. § 1983. As pertinent here, the Plaintiffs alleged that the District Defendants violated the ADA and Section 504, and, in so doing, Section 1988, because the District’s policy of scheduling AIS courses during school hours disparately impacted students with disabilities.

■On January 16, 2014, the District Defendants moved for summary judgment. In a decision signed on August 27, 2014 and entered on August 28, 2014, the district court (Briccetti, J.) granted District Defendants’ motion for summary judgment. B.C. v. Mount Vernon City Sch. Dist., No. 11 CV 1411 VB, 2014 WL 4468082, at *1 (S.D.N.Y. Aug. 28, 2014). As to Plaintiffs’ ADA and Section 504 claims, the court stated that the IDEA exhaustion requirement applied because Plaintiffs’ claims were related to the provision of special education to J.C. and T.H. under the IDEA. Id. at *5-*6. The court concluded, however, that Plaintiffs’ ADA and Section 504 claims were excused from the IDEA exhaustion requirement, as these claims challenged a “district-wide policy of discrimination,” id. (quoting Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008)), and exhausting administrative remedies with respect to the District’s “framework and procedures” would have been futile, id. (quoting J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 114 (2d Cir. 2004)).

On the merits, the court rejected Plaintiffs’ claim that the District’s policy of scheduling AIS courses during school hours, rather than outside of school hours, disparately impacted' children with a “disability” under the ADA and Section 504. See id. at *6-*9. In support of their disparate impact claim of discrimination, Plaintiffs had offered evidence showing that the District’s AIS policy affected children with a “disability” under the IDEA at a higher percentage than it affected children without such disability. Id. at *7. This evidence, the court reasoned, at most showed that the District’s AIS policy, disparately impacted children with a “disability” under the IDEA. Id. at *7-*8. It did not, however, show that the District’s AIS policy disparately impacted individuals with a “disability” under the ADA and Section 504, since the definition of “disability” is different under the IDEA than under the ADA and Section 504. Id. at *8. The court therefore deemed the evidence insufficient to support a prima facie claim of disparate impact discrimination under the ADA and Section 504. Id. at *9. Because Plaintiffs failed to state a prima facie claim of discrimination under the ADA and Section 504, the court also granted summary judgment to the District Defendants on Plaintiffs’ Section 1983 claims, to the extent that such claims were based on alleged violations of the ADA and Section 504. Id.

Discussion

This Court “review[s] de novo a district court’s grant or denial of summary judgment.” Mullins v. City of New York, 653 F.3d 104, 113 (2d Cir. 2011) (internal quotation marks omitted). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may ... point[ ] tó an absence of evidence to support an essential element of the nonmoving party’s claim.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996). We “constru[e] the evidence in the light most favorable to the non-moving party,” in reviewing the district court’s determination to grant the motion, which is proper only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Silverman v. Teamsters Local 210 Affiliated Health & Ins. Fund, 761 F.3d 277, 284 (2d Cir. 2014) (quoting Fed. R. Civ. P. 66(a)).

The ADA and Section 604 both protect “qualified individuals] with a disability.” 42 U.S.C. §12132 (ADA); 29 U.S.C. § 794(a) (Section 504). Under the ADA; “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Likewise, under Section 504, “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). “Because the standards adopted by the two statutes are nearly identical, we consider the merits of these claims together.” McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012).

To establish a prima facie case of discrimination under either the ADA or Section 504, a plaintiff must show the following: (1) plaintiff is a “qualified individual with a disability;” (2) plaintiff was “excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by [the] public entity;” and (3) “such exclusion or discrimination was due to [plaintiffs] disability.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (quoting Har-grave v. Vt., 340 F.3d 27, 34-35 (2d Cir. 2003)). Exclusion or discrimination may take the form of disparate treatment, disparate impact, or failure to make a reasonable accommodation. Id. To establish a prima facie case under a disparate impact theory, plaintiff must demonstrate “(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 574-75 (2d Cir. 2003) (emphasis omitted). Thus, “plaintiffs are ordinarily required to include statistical evidence to show disparity in outcome between groups.” Id. at 575. This can be done by offering evidence showing that a neutral policy adversely affects a much greater percentage of people with a disability than it affects people without a disability. See id. at 577.

Here, plaintiffs seek to establish their prima facie disparate impact claim by comparing (1) the percentage rate at which high school students classified as having a “disability” under the IDEA receive AIS courses to (2) the percentage rate at which high school students not classified as having such a disability receive AIS courses. During the 2008-2009 school year in the Mount Vernon City School District, high school students who were classified as having a “disability” under the IDEA (i.e., special education students) took AIS courses at a rate that was almost three times the rate at-which high school students not classified as having a disability received AIS instruction. Approximately 23.02% of high school students receiving special education support took AIS classes, as compared to 8.62% of the rest of the student body. During the 2009-2010 school year in the Mount Vernon City School District, high school students receiving special education support were enrolled in AIS courses at a rate that was more than one-and-a-half times the rate at which the general high school student body received AIS instruction. In that year, approximately 20.37% of the special education high school students took AIS courses, as opposed to the 12.56% of the general high school population enrolled in these classes.

Plaintiffs do not rely upon and have not placed into the record any particularized evidence to show that individual students included in their data who are classified as having a “disability” pursuant to the IDEA also satisfy the ADA and Section 504 “disability” definitions. Nor have they identified any generalized evidence tending to establish this point. Plaintiffs’ statistical evidence, therefore, shows disparate impact under the ADA and Section 504 only if, as a matter of law, a child with a disability under the IDEA necessarily qualifies as an individual with a disability under the ADA and Section 504, such that Plaintiffs’ data on children with a disability under the IDEA suffice as data on individuals with a disability under the ADA and Section 504. We conclude that this is not the case.

* * *

We begin with the statutory text. The ADA and Section 504 define the term “disability” differently than the IDEA does. The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Section 504 expressly incorporates, with certain qualifications not applicable here, the ADA’s definition. 29 U.S.C. § 705(20)(B). By contrast; under the IDEA, a “child with a disability” has one or more of an enumerated list of impairments requiring “special education or related services.” 20 U.S.C. § 1401(B).

These are distinct legal standards. Although both define “disability” by reference to the effects of an individual’s impairment, the statutes provide for different inquiries. The ADA asks whether an impairment “substantially limits” a major life activity, 42 U.S.C. § 12102(1)(A), while the IDEA trains on whether an impairment necessitates “special education and related services.” 20 U.S.C. § 1401(3)(A). Thus, a child might “need[ ] special education and related services” by reason of an impairment, id. even if that impairment does not “substantially limit[ ] ... [a] major life activity],” 42 U.S.C. § 12102(1)(A). As the Tenth Circuit concluded, “one may ... qualify as ‘disabled’ under the IDEA for purposes of that statute without demonstrating a ‘substantially limiting]’ impairment.” Ellenberg v. N.M. Military Inst., 572 F.3d 815, 821 (10th Cir. 2009).

Although many, if not most, IDEA-eligible individuals may “also [be] handicapped under [the ADA],” id. at 823, we agree with the Tenth Circuit that Plaintiffs’ approach reads the ADA’s substantial limitation requirement, which we have consistently enforced, out of that statute, cf. TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (“It is our duty ‘to give effect, if- possible, to every clause and word of a statute’ ” (quoting United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955))). Mindful that “[n]ot every impairment that affects an individual’s major life activities -is a substantially limiting impairment,” Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 151 (2d Cir. 1998) (emphasis added) (quoting Knapp v. Nw. Univ., 101 F.3d 473, 481 (7th Cir. 1996)), “in assessing whether a plaintiff has a disability, [we] have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities,” Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998) (“Although almost every impairment may, of course, in some way affect a major life activity, the ADA clearly does not consider every impaired person to be disabled.”). A plaintiff seeking redress under the ADA must “show that any limitations are in fact substantial, not amounting to only a mere difference in conditions, manner, or duration.” Bartlett v. N. Y. State Bd. of Law Exam’rs, 226 F.3d 69, 80 (2d Cir. 1998) (quotation marks omitted).

We have taken care to distinguish between “substantially overlap[ping]” definitions in a similar context. Ellenberg, 572 F.3d at 822. In Rodriguez v. Village Green Realty, Inc., the plaintiff, whose child had a “disability” within the meaning of the IDEA, alleged discrimination under the Fair Housing Act (“FHA”). 788 F.3d 31, 44 (2d Cir. 2015). The FHA prohibits discrimination on the basis of “handicap,” 42 U.S.C. § 3604(f), defined as “a physical or mental impairment which substantially limits one or more .,. major life activities.” Id. § 3602(h)(1). Although we concluded that evidence pertaining to, inter alia, the' “nature of [the child’s] specific [special education] services” created a triable question of fact as to whether the plaintiff had a disability under the FHA, we stated that “the receipt of special education services is not, by itself, determinative as to whether a child -qualifies as disabled [under the FHA].” 788 F.3d at 44. We reasoned that “[a] child receiving services under the IDEA ‘need not be substantially limited in the major life activity of learning,’ so ‘one may therefore qualify as disabled under the IDEA for purposes of that statute without demonstrating a substantially limiting- -impairment,’” Id. (quoting Ellenberg, 572 F.3d at 821). Rodriguez thus supports our holding that the ADA and IDEA set forth distinct legal standards in their definitions of “disability,” such that an individual will not qualify for the ADA’s protections simply by virtue of his or her disabled status under the IDEA.

This reading is consistent with the statutory schemes at issue. The ADA- and IDEA, while both providing relief for persons with disabilities, serve distinct ambitions in different ways. The ADA sweeps broadly, seeking to curb discrimination “against disabled individuals in major areas of public life,” such as employment, public services, public accommodations, and education, PGA Tour, Inc. v. Martin, 532 U.S. 661, 675, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001); see also 42 U.S.C. § 12101, while the IDEA trains more narrowly on public education to ensure the provision of special education benefits to qualifying individuals, see 20 U.S.C. § 1400. Disability is defined generically in the ADA, 42 U.S.C., § 12102(1), with the sub-stantiality requirement then serving to focus the statute on the class of persons Congress aimed to protect — those who, by virtue of their disability, may experience discrimination impairing their “right to fully participate in all aspects of society,” id. § 12101(a)(1). The IDEA, for its part, focuses on ensuring that special education and related services are provided to persons who might benefit by virtue of a mental or physical impairment. See 20 U.S.C. § 1400. The IDEA asks only whether a child “needs” special education and related services because of a particular impairment. Id, § 1401(3)(A)(ii). This straightforward test thus advances the ameliorative statutory aim of “[ijmproving educational results for children with disabilities,” regardless of how acute those disabilities might be. Id. § 1400(c)(1).

For these reasons, an IDEA disability is not equivalent to a disability as cognizable under the ADA and Section 504. Plaintiffs, therefore, cannot rely solely on “receipt of special education” to establish an ADA or Section 504 disability. Ellenberg, 572 F.3d at 819. Those seeking relief pursuant to ADA or Section 504 must come forward with “additional evidence” — beyond simply their eligibility for IDEA coverage — showing their eligibility for the remedies, afforded by the ADA and Section 504. Rodriguez, 788 F.3d at 45. Under a statistics-based disparate impact theory, this means that a plaintiff may not rely solely on statistics concerning individuals “disabled” within the meaning of the IDEA to establish a prima facie claim under the ADA or Section 504.

Here, Plaintiffs’ disparate impact claim relies exclusively on data concerning students with disabilities under the IDEA. Aside from their receipt of special education services, the record is devoid of any evidence as to whether the students included in the data qualify as disabled under the ADA or Section 504. Because, as a matter of law, an IDEA disability does not necessarily constitute a disability under the ADA or Section 504, Plaintiffs’ data do not establish “a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” Tsombanidis, 352 F.3d at 575. Plaintiffs have therefore failed to make their prima facie showing that District Defendants’ AIS policy adversely impacted individuals protected by the ADA and Section 504. Because Plaintiffs “fail[ed] to make a showing sufficient to establish the existence of an element essential to [their] case, and on which [they] will bear the burden of proof at trial,” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the district court properly entered summary judgment in favor of District Defendants as to Plaintiffs’ ADA and Section 504 claims. Likewise, because Plaintiffs failed to make their prima facie showing under the ADA and Section 504, the district court properly entered summary judgment on their derivative Section 1983 claim against the District Defendants.

For the foregoing reasons and for the reasons stated in the accompanying summary order, we AFFIRM the district court’s judgment.

      . The district court also granted summary judgment to the District Defendants with respect to Plaintiffs’ claim under 42 U.S.C. § 1983 insofar as it relied on alleged violations of the ADA and Section 504.

      . According to her deposition testimony, B.C, first learned about AIS courses and their potential implications for her daughter’s edu- . cation in March 2009, the preceding spring. She was assured in meetings with school and district officials at that time that J.C. would be able to make up credits and graduate high school on time.

      . The District Defendants do not challenge the district court's determination that exhaustion of Plaintiffs’. ADA and Section 504 claims would have been futile, excepting them from the exhaustion requirement. See id. at *5-*6. Because the IDEA’S exhaustion requirement is jurisdictional, see Cave, 514 F.3d at 245, we address this issue on appeal and conclude that the district court was correct that Plaintiffs’ ADA and Section 504 claims fall within the "futility” exception because they challenge a "district-wide policy.” Mt. Vernon, 2014 WL 4468082, at *6 (quoting Cave, 514 F.3d at 250).

      . In the following discussion, this opinion refers to the ADÁ as shorthand in characterizing the law under both the ADA and Section 504, given these statutes’ identical definition of “disability.”

      . Subsection (A) of the definition — the subsection relevant to the high school students at issue in this case — enumerates the following impairments: "intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance ..., orthopedic impairments, autism, traumatic brain injury, other health impairments, dr specific learning disabilities.” 20 U.S.C. § 1401(3)(A).

      .The ADA defines "major life activities” as, inter alia, "learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A).

      . Prior to 2008, the ADA and FHA's definitions of the terms "disability” and "handicap,” respectively, were identical. See Rodriguez, 788 F.3d at 40 n.10. The ADA Amendments Act of 2008 (“ADAAA”), while leaving untouched the general definition of “disability” — “a physical or mental impairment that substantially limits one or more major life activities” — did flesh out the previously undefined term “major life activities.”' Pub, L. 110-325, § 4(a), 122 Stat. 3553, 3555 (codified at 42 U.S.C. § 12102(2)(A)) (“[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”). The FHA has not been similarly amended. Nevertheless, the ADAAA does not affect the basic logic of our observation in Rodriguez that an individual eligible for the IDEA will not invariably also qualify for FHA protections, due to the different definitions of "disability” and “handicap” in those statutes.

      . Our sister circuits have reached the same conclusion. See Ellenberg, 572 F.3d at 820-22, 824 ("Of course an IDEA disability may — and in the majority of cases probably will — substantially limit a major life activity. But the point here is that it need not, and thus a plaintiff must individually show substantial limitation [to state a claim under the ADA or Section 504].”); Mann v. La. High Sch. Athletic Ass’n, 535 Fed.Appx. 405, 411 (5th Cir. 2013) ("The ADA definition of disability is more stringent because it requires a plaintiff to prove that his or her impairment substantially limits a major life activity, which is an inquiry entirely absent from the IDEA definition.”); see also Bowers v. Nat’l Collegiate Athletic Ass’n, 563 F.Supp.2d 508, 533 (D.N.J. 2008) (reaching the same conclusion).

      . Section 504 operates similarly to the ADA, prohibiting discrimination on the basis of disability in programs receiving federal financial support. 29 U.S.C. § 794(a). As in the ADA, the "substantial limitation” requirement serves to focus the statute’s application.

      . We note that the AD AAA rejected the Supreme Court’s construction of "substantial[ ]” as requiring a "severe" or "significant” limitation, see id. § 12102(4)(B) ("The term 'substantially limits’ shall be interpreted consistently with the findings and purposes of the [ADAAA].”); Pub. L. 110-325, § 2(b)(4), 122 Stat. 3553, 3554 ("The purpose[] of this Act [is inter alia] to reject the standards enunciated by the Supreme Court in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184[, 122 S.Ct. 681, 151 L.Ed.2d 615] (2002).”). Congress, however, retained the term “substantially limits” in this amendment, while instructing that "the definition of disability ..", shall be construed in favor of broad coverage ..., to the maximum extent permitted by the terms of this chapter,” 42 U.S.C. § 12102(4)(A) (emphasis added).