Petition for Writ of Certiorari — Simon Ateba, Petitioner v. Karoline C. Leavitt, in Her Official Capacity as Press Secretary to the President of the United States, et al.
Supreme Court briefSep 8, 2025
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No. 25-____
IN THE
Supreme Court of the United States
SIMON ATEBA,
v.
Petitioner,
KAROLINE C. LEAVITT, in her official capacity
as Press Secretary to the President of the United
States; UNITED STATES SECRET SERVICE;
SEAN CURRAN, in his official capacity as Director
of the United States Secret Service,
Respondents.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR WRIT OF CERTIORARI
JOSH DIXON
Counsel of Record
MARK TRAMMELL
COURTNEY CORBELLO
CENTER FOR AMERICAN LIBERTY
2145 14th Avenue, Suite 8
Vero Beach, FL 32960
JDixon@libertycenter.org
(703) 687-6200
Counsel for Petitioner
i
QUESTIONS PRESENTED
The White House hard-pass policy governs
journalists’ access to the White House Press Area, a
critical venue for covering the President. The Biden
Administration amended the policy in 2023 to require
journalists generally to first obtain credentials from
one of the Congressional press galleries before they
may obtain a hard pass. But in adjudicating
applications for Congressional credentials, the press
galleries apply vague standards without decisional
deadlines or an avenue for judicial review.
Petitioner Simon Ateba, a 15-year journalist and
White House correspondent for Today News Africa,
had his hard pass revoked under the new policy
because he lacked Congressional credentials. He
challenged the new policy under the First
Amendment, but the D.C. Circuit upheld the policy.
The questions presented are:
1. Whether the existence of unbridled discretion in a
speech-licensing regime is per se viewpoint
discrimination
or
merely
assessed
for
constitutional reasonableness.
2. Whether decisional deadlines in a speech-licensing
regime are constitutionally required when the
regime is content-neutral.
3. Whether the availability of inferior alternatives in
a speech-licensing scheme—such as, here, the fact
that a journalist may be able to obtain a day pass
to access the Press Area—cures a violation of the
unbridled discretion doctrine.
ii
STATEMENT OF RELATED CASES
The proceedings identified below are directly
related to the above-captioned case in this Court.
Ateba v. Jean-Pierre, et al., No. 1:23-cv-2321-JDB,
U.S. District Court for the District of Columbia.
Judgment entered December 7, 2023.
Ateba v. Leavitt, et al., No. 24-5004, U.S. Court of
Appeals for the District of Columbia Circuit.
Judgment entered April 8, 2025.
Ateba v. Leavitt, et al., No. 24-5004, U.S. Court of
Appeals for the District of Columbia Circuit. Order
denying petition for panel rehearing entered June 9,
2025.
Ateba v. Leavitt, et al., No. 24-5004, U.S. Court of
Appeals for the District of Columbia Circuit. Order
denying petition for rehearing en banc entered June
9, 2025.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i
STATEMENT OF RELATED CASES ....................... ii
TABLE OF APPENDICES ........................................ v
TABLE OF AUTHORITIES...................................... vi
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
STATUTORY PROVISION INVOLVED................... 1
STATEMENT OF THE CASE ................................... 2
I.
FACTUAL BACKGROUND ..................... 2
II.
THE PROCEEDINGS BELOW ................ 4
A.
The District Court’s Dismissal ...... 5
B.
The D.C. Circuit Panel’s
Affirmance ...................................... 6
REASONS FOR GRANTING THE WRIT ................. 7
I.
CERTIORARI SHOULD BE
GRANTED TO RESOLVE THREE
CIRCUIT SPLITS ..................................... 7
A.
A Circuit Split Exists Regarding
the Proper Conceptualization of
Unbridled Discretion in
Licensing Regimes ......................... 9
iv
II.
B.
A Circuit Split Exists Regarding
the Necessity of a Decisional
Deadline in a Content-Neutral
Licensing Scheme ......................... 13
C.
A Circuit Split Exists
Regarding Whether the
Availability of Inferior Speech
Alternatives in a Licensing
Regime Cures an Unbridled
Discretion Violation ..................... 16
THIS CASE IS AN EXCELLENT
VEHICLE FOR REVIEWING
THESE IMPORTANT
QUESTIONS PRESENTED ................... 19
CONCLUSION ......................................................... 21
v
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT,
FILED APRIL 8, 2025 ........................................ 1a
APPENDIX B — MEMORANDUM OPINION
AND ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA, FILED DECEMBER 7,
2023 ................................................................... 26a
APPENDIX C — DENIAL OF REHEARING
EN BANC OF THE UNITED STATES
COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT,
FILED JUNE 9, 2025 ....................................... 77a
APPENDIX D — DENIAL OF PANEL REHEARING OF THE UNITED STATES
COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT,
FILED JUNE 9, 2025 ....................................... 79a
APPENDIX E — HOUSE/SENATE PRESS
RULES AND REGULATIONS ......................... 81a
vi
TABLE OF AUTHORITIES
Page(s)
Cases:
Adams Outdoor Advert. Ltd. P’ship by Adams
Outdoor GP, LLC v. Penn. Dep’t of Transp.,
930 F.3d 199 (3d Cir. 2019) ................................ 14
Am. Freedom Def. Initiative v.
Wash. Metro. Area Transit Auth.,
901 F.3d 356 (D.C. Cir. 2018) ............................... 9
Associated Press v. Budowich,
780 F.Supp.3d 32 (D.D.C. Apr. 8, 2025) ............. 19
Atlanta Journal & Constitution v. City of Atlanta
Department of Aviation,
322 F.3d 1298 (11th Cir. 2003) ........................... 17
Barrett v. Walker County School District,
872 F.3d 1209 (11th Cir. 2017) ........................... 14
Child Evangelism Fellowship of Md., Inc. v.
Montgomery Cnty. Pub. Schs.,
457 F.3d 376 (4th Cir. 2006) ................................. 9
City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750 (1988) ....................................... 10, 14
Consumers Union of U.S. v.
Periodical Correspondents’ Ass’n,
515 F.2d 1341 (D.C. Cir. 1975) ............................. 4
Cornelius v. NAACP Legal Def.
& Educ. Fund, Inc.,
473 U.S. 788 (1985) ............................................. 10
vii
Encore Videos, Inc. v. City of San Antonio,
330 F.3d 288 (5th Cir.), opinion clarified on other
grounds, 352 F.3d 938 (5th Cir. 2003), abrogated
on other grounds by Reed v. Town of Gilbert,
576 U.S. 155 (2015) ............................................. 14
Freedom From Religion Found. v. Abbott,
955 F.3d 417 (5th Cir. 2020) ............................... 10
Granite State Outdoor Advertising, Inc. v.
City of St. Petersburg,
348 F.3d 1278 (11th Cir. 2003) ........................... 14
Griffin v. Sec’y of Veterans Affs.,
288 F.3d 1309 (Fed. Cir. 2002) ....................... 9, 15
Grosjean v. American Press Co.,
297 U.S. 233 (1936) ............................................. 19
H.D.V.–Greektown, LLC v. City of Detroit,
568 F.3d 609 (6th Cir. 2009) ............................... 15
John K. MacIver Inst. for Pub. Pol’y, Inc. v. Evers,
994 F.3d 602 (7th Cir. 2021) ......................... 19, 20
Josephine Havlak Photographer, Inc. v.
Vill. of Twin Oaks,
864 F.3d 905 (8th Cir. 2017) ................................. 9
Kaahumanu v. Hawaii,
682 F.3d 789 (9th Cir. 2012) ........................... 9, 11
Karem v. Trump,
960 F.3d 656 (D.C. Cir. 2020) ............................. 19
Miami Herald Pub. Co. v. Tornillo,
418 U.S. 241 (1974) ............................................. 21
viii
Nexstar Media, Inc. v. Walters,
776 F.Supp.3d 1053 (W.D. Okla. 2024) ......... 19-20
Pen Am. Ctr., Inc. v. Trump,
448 F.Supp.3d 309 (S.D.N.Y. 2020) .................... 20
Polaris Amphitheater Concerts, Inc. v.
City of Westerville,
267 F.3d 503 (6th Cir. 2001) ................................. 9
Rosenberger v. Rector
& Visitors of Univ. of Virginia,
515 U.S. 819 (1995) ............................................. 10
S. Or. Barter Fair v. Jackson Cnty.,
372 F.3d 1128 (9th Cir. 2004) ............................. 15
S. Or. Barter Fair v. Jackson Cnty.,
401 F.3d 1124 (9th Cir. 2005) ............................. 15
Seattle Affiliate of Oct. 22nd Coal.
to Stop Police Brutality, Repression
& Criminalization of a Generation v.
City of Seattle,
550 F.3d 788 (9th Cir. 2008) ............................... 17
Sec’y of State of Md. v. Joseph H. Munson Co.,
467 U.S. 947 (1984) ............................................. 18
Southworth v. Bd. of Regents of Univ. of Wisc. Sys.,
307 F.3d 566 (7th Cir. 2002) ................................. 9
TGP Commc’ns, LLC v. Sellers,
No. 22-16826, 2022 WL 17484331
(9th Cir. Dec. 5, 2022) ......................................... 19
Thomas v. Chicago Park Dist.,
534 U.S. 316 (2002) ............................................. 13
ix
Statutes & Other Authorities:
U.S. Const. Amend. I ..................1, 4, 5, 6, 7, 8, 10, 11,
12, 13, 14, 15, 16, 18, 19, 21
Shapiro, K. Geller, T. Bishop, E. Hartnett, & D.
Himmelfarb, Supreme Court Practice § 4.4
(11th ed. 2019)....................................................... 8
28 U.S.C. § 1254(1) ..................................................... 1
1
Petitioner petitions for a writ of certiorari to
review the panel judgment of the United States Court
of Appeals for the District of Columbia Circuit.
OPINIONS BELOW
The D.C. Circuit’s order denying rehearing en banc
is reported at 2025 WL 1645467 and reproduced at
App.77a to App.78a. The D.C. Circuit’s order denying
panel rehearing is reproduced at App.79a to App.80a.
The D.C. Circuit’s panel opinion is reported at 133
F.4th 114 and reproduced at App.1a to App.25a. The
district court’s opinion granting summary judgment
is reported at 706 F.Supp.3d 63 and reproduced at
App.26a to App.76a.
JURISDICTION
The D.C. Circuit denied rehearing en banc on
June 9, 2025. This Court has jurisdiction under 28
U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
The First Amendment provides:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the
Government for a redress of grievances.
Other pertinent regulations are reproduced in the
appendix. App.81a–87a.
2
STATEMENT OF THE CASE
I.
FACTUAL BACKGROUND.
The White House Press Area, encompassing the
James S. Brady Press Briefing Room and other
designated spaces, is a critical venue for journalists
covering the President. App.3a, 28a. The briefing
room hosts press briefings, accommodating
correspondents from major and smaller media outlets
alike. App.27a–28a. Access to the Press Area requires
a pass, which can be one of two primary types: a day
pass, valid for one day only and requiring heightened
Secret Service scrutiny that can cause significant
delays, and a hard pass, which grants its holder
unlimited access to the Press Area during business
hours. App.3a, 46a.
A hard pass is essential for regular White House
correspondents due to its efficiency for covering
breaking news. App.3a, 46a. While a hard pass holder
may enter the Press Area upon showing the pass, a
day pass holder must wait for a Secret Service escort
to enter the Press Area, which can take up to 45
minutes, during which time the limited space in the
Briefing Room can fill up. App.3a, 28a–29a. In
addition, day passes are good for one day only, and
journalists must resubmit a new day-pass application
no later than 5 p.m. the day before any day they plan
to access the Press Area. App.3a, 29a.
Ateba, a journalist for 15 years, has been a White
House correspondent for Today News Africa since
2018. App.4a–5a. After using the day pass system to
access the Press Area for about three years, he
obtained a hard pass in 2021, in the early days of the
3
Biden Administration, when the Administration
relaxed the hard-pass criteria. App.5a. On May 5,
2023, however, the White House announced a return
to stricter hard pass criteria, effective July 31, 2023,
requiring journalists to hold accreditation from the
Supreme Court or one of the Congressional press
galleries. App.30a–31a. Because Ateba lacked
Supreme Court or Congressional credentials, his hard
pass was terminated on July 31, 2023. App.27a, 31a.
Approximately 500 other journalists also had their
hard passes revoked at that time. App.4a, 36a.
Obtaining press credentials from the Supreme
Court or the Congressional press galleries is difficult.
The Supreme Court Press Office credentials only fulltime Court correspondents, making White House
reporters like Ateba ineligible. App.32a–33a.
There are four Congressional press galleries: Daily
Press, Periodical Press, Radio and Television, and
Press Photographers. App.33a. The galleries are run
by committees, each of which is composed of a small
group of credentialed journalists from established
media outlets. App.5a. These committees oversee
credentialing. App.5a. The Daily Press Gallery’s
rules—the rules under which Ateba is required to
obtain credentials—require applicants to be “bona
fide correspondents of repute,” employed by a daily
news organization, full-time paid journalists needing
on-site Congressional access, Washington, D.C.
residents, not engaged in lobbying or advocacy, and
editorially independent. App.5a–6a, 33a–34a.
The rules lack a deadline for processing
applications. App.6a. Moreover, there is no avenue for
4
judicial review of the galleries’ credentialing
decisions. See Consumers Union of U.S. v. Periodical
Correspondents’ Ass’n, 515 F.2d 1341, 1350 (D.C. Cir.
1975) (holding Congressional press galleries immune
under Speech or Debate Clause in connection with
their credentialing decisions).
On June 5, 2023, Ateba applied for Congressional
credentials with the Daily Press Gallery. App.5a, 33a.
To date, Ateba’s application has not been ruled on.
App.2a, 36a. Moreover, the White House has refused
to give Ateba day passes since January 2025. App.2a,
5a. Accordingly, Ateba no longer has access to the
Press Area.
II.
THE PROCEEDINGS BELOW
On August 10, 2023, Ateba filed a verified
complaint in the United States District Court for the
District of Columbia against the White House Press
Secretary and the Director of United States Secret
Service. App.37a. In his complaint, Ateba sought,
among other things, preliminary and permanent
injunctive relief in connection with the hard-pass
policy. App.37a. He brought three claims: (1) a facial
and as-applied challenge to the hard-pass scheme
under the First Amendment’s unbridled discretion
doctrine; (2) a First Amendment viewpoint
discrimination claim alleging that the Press Secretary
discriminated against him based on the content of his
questions; and (3) a claim under the Administrative
Procedure Act. App.6a, 37a.
5
A. The District Court’s Dismissal
On September 6, 2023, the district court denied
Ateba’s motion for a preliminary injunction. App.37a–
38a. The district court, however, recognizing the
importance of addressing the merits quickly,
expedited summary judgment briefing. App.38a.
The parties filed cross-motions for summary
judgment, and the district court held a hearing on
these motions on November 2, 2023. App.38a. On
December 7, 2023, the district court issued its opinion
and judgment. App.26a–76a. The court granted
summary judgment to the government on Ateba’s
challenge to the hard-pass scheme and his APA claim.
App.76a. The district court dismissed Ateba’s
viewpoint discrimination claim without prejudice.
App.76a. 1
Despite granting summary judgment to the
government on Ateba’s challenge to the hard-pass
scheme, the district court agreed with Ateba that
“being required to use a day pass instead of a hard
pass burdens Ateba’s Press Area access” and creates
an “actionable First Amendment injury.” App.46a. To
conclude otherwise, the district court held, “would
suggest that the White House could alter the hard
pass criteria—and thereby impose disparate burdens
on journalists seeking access to a place generally
opened to them—in entirely viewpoint-discriminatory
ways, and journalists would have no cause of action.”
App.48a. The district court also agreed with Ateba
Ateba did not appeal the district court’s dismissal of his
viewpoint discrimination claim or entry of summary judgment to
the government on his APA claim. App.6a.
1
6
that, because the White House had chosen to use the
Congressional press galleries as the gatekeeping
mechanism for determining hard-pass eligibility, the
Congressional credentialing process must comply
with the First Amendment. App.48a.
The district court disagreed, however, that the
credentialing process violated the First Amendment.
App.49a–64a. In rejecting Ateba’s arguments that the
hard-pass scheme violated various aspects of the
unbridled discretion doctrine, the district court
determined that the Daily Press Gallery’s vague
requirement that journalists must be “of repute in
their profession” was sufficiently definite. App.59a–
60a. The district court also concluded that the lack of
a required time frame within which the Daily Press
Gallery must issue credentials did not violate the
unbridled discretion doctrine because its rules are
content neutral. App.63a. And while the district court
recognized that the lack of judicial review in a speech
licensing regime violates the unbridled discretion
doctrine, App.54a, it failed to address Ateba’s
argument that the Daily Press Gallery rules violated
this requirement.
B. The D.C. Circuit Panel’s Affirmance
The D.C. Circuit affirmed. The court held that the
White House Press Area is a nonpublic forum, where
restrictions on speech must be viewpoint neutral and
reasonable in light of the forum’s purpose. App.14a–
15a. The court concluded that the hard-pass policy
was viewpoint neutral and reasonable. App.16a–24a.
7
As relevant here, first, the D.C. Circuit concluded
that the “of repute” standard did not violate the
unbridled discretion doctrine. In so concluding, the
panel conceptualized the unbridled discretion
doctrine as a requirement of constitutional
reasonableness, not viewpoint neutrality. App.18a.
Second, the court held that content-neutral licensing
regimes—like the hard-pass policy—need not contain
a deadline by which the licensor must act. App.23a–
24a. Third, the court held that the hard-pass policy’s
lack of a deadline was not problematic because Ateba
was able to access the Press Area through the inferior
day-pass program. App.22a–23a. Like the district
court, the D.C. Circuit also failed to address Ateba’s
argument that the lack of judicial review of
Congressional press gallery decisions rendered the
hard-pass policy unconstitutional. App.9a.
*
*
*
Ateba files this petition for a writ of certiorari to
resolve three important circuit splits. Certiorari is
necessary to ensure uniform First Amendment
protections for the free press and to abrogate circuit
precedent that enables arbitrary censorship through
discretionary standards, indefinite delays, and
inferior speech alternatives.
REASONS FOR GRANTING THE WRIT
I. CERTIORARI SHOULD BE GRANTED TO RESOLVE
THREE CIRCUIT SPLITS
This petition presents three significant circuit
splits on critical First Amendment questions that
deserve review by this Court. See Supreme Court Rule
8
10(a) (noting that certiorari is appropriate when “a
United States court of appeals has entered a decision”
that conflicts with “the decision of another United
States court of appeals”); see also Shapiro, K. Geller,
T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme
Court Practice § 4.4, p. 4–11 (11th ed. 2019) (“The
Supreme Court often . . . will grant certiorari where
the decision of a federal court of appeals . . . is in direct
conflict with a decision of another court of appeals on
the same matter of federal law” (emphasis deleted)).
First, the circuits are divided on whether
violations of the unbridled discretion doctrine
predicated on vaguely worded regulations are
conceptualized as per se viewpoint discrimination or
merely an indication that the licensing scheme may
be constitutionally unreasonable. Second, a circuit
split exists regarding whether content-neutral
licensing regimes must include a firm deadline for the
government to rule on license applications to avoid
conferring excessive discretion. Third, courts disagree
on whether a licensing scheme that allows for inferior
alternative means of access nevertheless violates the
unbridled discretion doctrine. These entrenched
divisions among the circuits create uncertainty in
First Amendment jurisprudence, undermine uniform
protection of press freedoms nationwide, and warrant
this Court’s intervention to clarify standards that
impact journalistic access to the executive branch and
public accountability more generally.
9
A. A Circuit Split Exists Regarding the
Proper Conceptualization of Unbridled
Discretion in Licensing Regimes
In its first circuit split, the panel conceptualized
the unbridled discretion doctrine as an outgrowth of
the requirement of constitutional reasonableness, not
viewpoint neutrality. App.18a. Although the panel
acknowledged that other circuits have held that “the
exercise of unbridled discretion to limit speech is per
se viewpoint discrimination,” it stated that D.C.
Circuit precedent was to the contrary. App.18a.
(citing Am. Freedom Def. Initiative v. Wash. Metro.
Area Transit Auth., 901 F.3d 356, 372 (D.C. Cir.
2018)). The panel’s conclusion not only creates (or
cements) a circuit split, but also goes against the
heavy weight of authority concluding that the
existence of unbridled discretion in a licensing regime
is per se viewpoint discrimination. See Kaahumanu v.
Hawaii, 682 F.3d 789, 806 (9th Cir. 2012); Child
Evangelism Fellowship of Md., Inc. v. Montgomery
Cnty. Pub. Schs., 457 F.3d 376, 384 (4th Cir. 2006);
Southworth v. Bd. of Regents of Univ. of Wisc. Sys.,
307 F.3d 566, 579 (7th Cir. 2002); Polaris
Amphitheater Concerts, Inc. v. City of Westerville, 267
F.3d 503, 508–09 (6th Cir. 2001); Josephine Havlak
Photographer, Inc. v. Vill. of Twin Oaks, 864 F.3d 905,
919 (8th Cir. 2017); contra Griffin v. Sec’y of Veterans
Affs., 288 F.3d 1309, 1322 (Fed. Cir. 2002) (rejecting
“a per se rule that every grant of unbridled discretion
is facially unconstitutional”).
This circuit split is not merely an academic
disagreement. Viewpoint discrimination is a “blatant”
and “egregious form of content discrimination” that is
10
necessarily unconstitutional. Rosenberger v. Rector &
Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995)
(noting that the government “may [not] discriminate
against speech on the basis of its viewpoint”). But
conceptualizing unbridled discretion as a function of
constitutional reasonableness allows courts flexibility
to determine that a licensing regime with unbridled
discretion is nevertheless constitutionally reasonable.
18a (concluding that “a violation of the unbridled
discretion doctrine is generally unreasonable under
the First Amendment” (emphasis added)); see also
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 809 (1985) (concluding that
reasonableness must be “assessed in the light of the
purpose of the forum and all the surrounding
circumstances”)
Conceiving of the unbridled discretion doctrine as
a requirement of constitutional reasonableness
undermines the important purposes that doctrine is
designed to serve—specifically, removing the
incentive for speakers to self-censor and keeping the
government from concealing its censorship behind the
veil of discretion. See City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 759-60, 762 (1988); see also
Freedom From Religion Found. v. Abbott, 955 F.3d
417, 427 (5th Cir. 2020) (“Unbridled discretion runs
afoul of the First Amendment because it risks selfcensorship and creates proof problems in as-applied
challenges.”). These purposes are especially
important when applied to the press. Id. In circuits
that rightly recognize unbridled discretion as per se
viewpoint discrimination, journalists and media
outlets enjoy robust protections against arbitrary
censorship, which are often imposed by the very
11
people the journalists seek to cover. Thus, the doctrine
ensures that investigative reporting, exposés on
government misconduct, and critical commentary are
not deterred by the threat of censorship.
But the D.C. Circuit’s flawed approach of reducing
the unbridled discretion doctrine to being only one
factor
among
others
in
considering
the
“reasonableness” of the licensing regime opens the
door for subtle—or not-so-subtle—suppression of
viewpoints that challenge authority. Imagine, for
example, a reporter covering corruption in the
nation’s capital who is subject to a credentialing
regime that evaluates whether the reporting is
“acceptable.” That regime deters the reporter’s
exercise of his or her First Amendment rights even if
other features of the restriction are reasonable. See
Kaahumanu, 682 F.3d at 805-807 (holding provision
in licensing scheme regarding granting of permits was
reasonable while provision in same licensing scheme
regarding revocation of permits created risk of selfcensorship). This is precisely where Ateba has found
himself in this case, wondering whether the
viewpoints expressed in his reporting render him
sufficiently “of repute.” And the result for him, and
other reporters alike, is a direct assault on the First
Amendment’s promise that the press remain free to
hold power accountable without fear of reprisal.
Moreover, this divergence in the circuit courts
exacerbates imbalanced protection under the law,
creating a balkanized landscape where the quality of
reporting depends on geography. A news organization
based in Los Angeles, for instance, can confidently
challenge discretionary permitting schemes as
12
inherently viewpoint-discriminatory. Yet in D.C., the
same challenge might falter under the panel’s
misguided decision, forcing journalists to self-censor
or relocate operations to avoid the chill. This
patchwork invites forum shopping and leaves
national media outlets—many headquartered in or
around D.C.—vulnerable to inconsistent enforcement.
The weight of authority from the Fourth, Sixth,
Seventh, Eighth, and Ninth Circuits overwhelmingly
supports treating unbridled discretion as a form of per
se
viewpoint
discrimination
that
demands
invalidation. By bucking this consensus without
meaningful analysis, the panel has not only
entrenched confusion but perpetuated a system where
free press rights are diluted precisely where they are
needed most: in the corridors of federal power.
Finally, failing to resolve this split risks a broader
erosion of First Amendment jurisprudence. Unbridled
discretion is not just a procedural flaw—it is an
authoritarian tool, enabling government actors to
mask bias as “reasonableness” and stifle dissenting
voices that expose truths the powerful would rather
hide. For the sake of every journalist who endeavors
to inform the public, uniformity is critical: the
unbridled discretion doctrine must be universally
recognized as an assault on viewpoint neutrality,
ensuring that the press remains a bulwark against
tyranny, not its victim. To leave this split
unaddressed invites discord that will only serve to
weaken the marketplace of ideas.
13
B. A Circuit Split Exists Regarding the
Necessity of a Decisional Deadline in a
Content-Neutral Licensing Scheme
The second circuit split that the D.C. Circuit
created (or deepened) arises out of its conclusion that
content-neutral licensing regimes need not contain a
deadline by which the licensor must act. App.23a–
24a. After asserting that “the Supreme Court . . . has
[n]ever held that processing deadlines are
constitutionally required in the context of a contentneutral licensing scheme,” the court below ruled that
such deadlines are only required in “content-based
schemes.” App.23a (cleaned up). Cf. Thomas v.
Chicago Park Dist., 534 U.S. 316, 322 (2002) (holding
content-neutral licensing regimes need not contain
deadline for judicial review).
By declaring that content-neutral licensing
schemes—like the D.C. Circuit deemed the White
House hard-pass policy to be—require no decisional
deadlines, the D.C. Circuit allowed officials to
procrastinate indefinitely, effectively vetoing press
access through bureaucratic inertia rather than overt
denial. This enables viewpoint suppression under the
guise of neutrality, allowing those in power to silence
inconvenient journalism by slow-walking approvals
until stories grow cold or reporters grow discouraged.
In short, no deadline means no accountability. This
turns the First Amendment’s promise of a robust
press into a hollow formality where access can be
granted only to those who toe the line.
The panel’s reasoning ignores the chorus of
circuits that have rightly recognized decisional
14
deadlines as essential bulwarks against abuse, even
in content-neutral licensing regimes. The Third
Circuit has explained that the deadline requirement
“diminish[es] the risk of arbitrarily or indefinitely
suppressing permissible speech”—a safeguard that
ensures journalists are not left twisting in the wind
while officials dither. Adams Outdoor Advert. Ltd.
P’ship by Adams Outdoor GP, LLC v. Penn. Dep’t of
Transp., 930 F.3d 199, 208 (3d Cir. 2019) (citation
omitted). The Fifth Circuit echoed this conclusion in
Encore Videos, Inc. v. City of San Antonio, deeming
decisional timelines an “essential procedural
safeguard” for any “content-neutral ‘licensing
scheme,’” thus preventing the very foot-dragging that
could bury investigative reports under mountains of
red tape. 330 F.3d 288, 296 (5th Cir.), opinion clarified
on other grounds, 352 F.3d 938 (5th Cir. 2003),
abrogated on other grounds by Reed v. Town of
Gilbert, 576 U.S. 155 (2015). And in Barrett v. Walker
County School District, the Eleventh Circuit
recognized that decisional deadlines were the
antidote to officials censoring disfavored speech
through deliberate delays. 872 F.3d 1209, 1222 (11th
Cir. 2017) (citing Granite State Outdoor Advertising,
Inc. v. City of St. Petersburg, 348 F.3d 1278 (11th Cir.
2003)). These circuits grasp what the D.C. Circuit
ignored: without deadlines, neutrality becomes a
facade, inviting the same perils of unbridled power
that the First Amendment was designed to thwart.
See City of Lakewood, 486 U.S. at 759-60.
By failing even to acknowledge—let alone refute—
these contrary holdings, the panel deepened a
fractured jurisprudence that sows chaos and
inequality, where a reporter’s constitutional
15
protections vary by circuit. In the Third, Fifth, or
Eleventh Circuits, members of the press can demand
swift decisions as a matter of right, fostering an
environment where real-time coverage of government
actions thrives without fear of endless postponement.
But in D.C., and other circuits that hold the same, this
erroneous ruling creates a safe haven for dilatory
tactics, disproportionately harming national media
outlets that operate in the shadow of government
buildings and rely on consistent access to fulfill their
democratic role. See H.D.V.–Greektown, LLC v. City of
Detroit, 568 F.3d 609, 624 (6th Cir. 2009) (holding
decisional deadlines are not required in contentneutral licensing ordinances); see also S. Or. Barter
Fair v. Jackson Cnty, 372 F.3d 1128, 1138 (9th Cir.
2004) (same); see also Griffin, 288 F.3d at 1328
(same). As one judge has explained, failing to require
decisional deadlines in content-neutral regimes
“accord[s] governmental authorities unbridled
discretion, through official footdragging, effectively to
veto . . . [activity] protected by the First Amendment.”
S. Or. Barter Fair v. Jackson Cnty., 401 F.3d 1124,
1124 (9th Cir. 2005) (Berzon, J., dissenting from
denial of rehearing en banc).
To perpetuate this division in the circuits invites a
nationwide erosion of press freedoms, breeding
uncertainty that chills bold reporting and emboldens
censors who exploit jurisdictional gaps. It weakens
the
Constitution’s
protections,
encouraging
governments to drag their feet in some circuits while
forcing journalists into costly, protracted battles in
other circuits. For the integrity of the free press—the
indispensable guardian against tyranny—this discord
should not survive any longer. This Court’s
16
intervention is urgently needed to decide that
decisional deadlines are mandatory in all licensing
regimes, content-neutral or otherwise, restoring a
seamless shield that empowers journalists to speak
truth to power without the specter of indefinite delay
hanging over them. Only then can we honor the First
Amendment’s command that the press remain
vigilant, undeterred, and truly free.
C. A Circuit Split Exists Regarding Whether
the Availability of Inferior Speech
Alternatives in a Licensing Regime Cures
an Unbridled Discretion Violation
Certiorari should also be granted to decide
whether violations of the unbridled discretion
doctrine are rendered harmless when applicants
retain inferior alternative means of participating in
speech, such as the White House’s day passes here.
The D.C. Circuit created a split in holding that
inferior alternatives cured the risks the unbridled
discretion doctrine was designed to guard against.
App.22a–23a. 2
This holding cuts against the First Amendment’s
core protections, allowing government entities to
dangle inferior alternatives as a smokescreen for
arbitrary censorship that directly undermines the
free press’s ability to function as a vigilant watchdog.
By ruling that the absence of deadlines in the hardpass policy is harmless simply because a subpar daypass option exists, the D.C. Circuit effectively
2 It should also be noted that Ateba, in fact, no longer has access
to the day-pass program, App.2a, so the panel’s conclusion not
only creates a circuit split but is now factually incorrect.
17
greenlighted a two-tiered system of access—one that
privileges compliant voices with seamless entry to the
heart of power, while relegating critical journalists
like Ateba to a burdensome, unpredictable day-pass
regime that chills timely reporting and investigative
journalism. Supra at 2 (explaining significant delays
and administrative efforts associated with day
passes).
The Ninth and Eleventh Circuits do not allow
inferior alternatives to insulate the government from
being held responsible for the harm caused by a
licensing scheme infused with unbridled discretion. In
Seattle Affiliate of Oct. 22nd Coal. to Stop Police
Brutality, Repression & Criminalization of a
Generation v. City of Seattle, the Ninth Circuit rightly
rejected the notion that sidewalks could substitute for
streets in a protest march, recognizing that inferior
alternatives cannot sanitize a scheme otherwise
infected with unbridled discretion. 550 F.3d 788, 796
(9th Cir. 2008). Similarly, the Eleventh Circuit in
Atlanta Journal & Constitution v. City of Atlanta
Department of Aviation held a newsrack policy to be
unconstitutional under the unbridled discretion
doctrine, even though other distribution methods
were available, reasoning that true First Amendment
protection demands equal footing, not a tiered system
that favors a few. 322 F.3d 1298, 1309-11 (11th Cir.
2003). These precedents affirm that offering a lesser
alternative does not cure the disease of unbridled
discretion—instead, a lesser alternative perpetuates
the same harm the unbridled discretion doctrine was
designed to guard against, enabling officials to steer
speech into less effective channels where it can be
18
ignored or diluted, thus encouraging journalists to
self-censor so they may stay in officials’ good graces.
To tolerate this division allows for the erosion of
the uniform shield that the Constitution promises.
Such a holding invites governments to experiment
with
tiered
access
that,
for
example,
disproportionately burdens small media and favors
large outlets. It also breeds confusion in lower courts,
encourages forum shopping and ultimately weakens
the press’s role in exposing corruption and informing
the citizenry. Moreover, the D.C. Circuit’s approach
permits courts to use the provision of inferior access
to avoid application of the unbridled discretion
doctrine and, simultaneously, force reporters to chill
their speech in order to obtain superior access. See
Sec’y of State of Md. v. Joseph H. Munson Co., 467
U.S. 947, 964 n. 12 (1984) (“By placing discretion in
the hands of an official to grant or deny a license, such
a statute creates a threat of censorship that by its
very existence chills free speech.”).
For the sake of every journalist who refrained from
asking a difficult question for fear that his or her
credentials would be revoked, this significant division
amongst the circuits must be resolved. This Court’s
intervention is imperative to declare unequivocally
that inferior alternatives are no antidote to unbridled
discretion. Only then can a level playing field be
restored where the free press thrives, unencumbered
by arbitrary barriers that serve not the public
interest, but the self-preservation of those in power.
19
II.
THIS CASE IS AN EXCELLENT VEHICLE FOR
REVIEWING THESE IMPORTANT QUESTIONS
PRESENTED
This case presents an excellent vehicle for this
Court’s review. The case comes to the Court following
a grant of the government’s summary judgment
motion. Thus, the record is complete and there are no
outstanding issues or ancillary disputes that must be
resolved before deciding the questions presented. In
addition, the only claim at issue is Ateba’s First
Amendment claim involving several facets of the
unbridled discretion doctrine. This case therefore
offers the Court a streamlined opportunity to address
the purely legal questions about that doctrine.
Moreover, the constitutional issues here are
significant and of growing concern. A free press and
equal access to areas the government opens to
journalists “implicates important First Amendment
rights.” Karem v. Trump, 960 F.3d 656, 665 (D.C. Cir.
2020) (cleaned up). This Court has long recognized
that “the suppression or abridgement of the publicity
afforded by a free press [must] be regarded . . . with
grave concern.” Grosjean v. American Press Co., 297
U.S. 233, 250 (1936).
The government’s weaponization of press access
policies to pick and choose its “preferred” reporters—
whether overtly or covertly—is a growing trend. See,
e.g., TGP Commc’ns, LLC v. Sellers, No. 22-16826,
2022 WL 17484331 (9th Cir. Dec. 5, 2022); John K.
MacIver Inst. for Pub. Pol’y, Inc. v. Evers, 994 F.3d 602
(7th Cir. 2021); Associated Press v. Budowich, 780
F.Supp.3d 32 (D.D.C. Apr. 8, 2025); Nexstar Media,
20
Inc. v. Walters, 776 F.Supp.3d 1053 (W.D. Okla. 2024);
Pen Am. Ctr., Inc. v. Trump, 448 F. Supp. 3d 309
(S.D.N.Y. 2020). Officials across the country are
adopting policies—some of which are based on
Congressional press gallery rules, Evers, 994 F.3d
606—that arrogate to the government the power to
decide who gets to inform the public of its affairs. But
newsgathering is the lifeblood of free speech—the
essential precursor to the dissemination of
information and ideas that the public needs to form
opinions, participate in democratic processes, and
hold those in power accountable. Greenlighting
governmental attempts to restrict press access by
using unbridled discretion so long as it is
“reasonable,” refusing to make timely decisions, and
allowing inferior alternatives to cure otherwise
deficient policies impacts all members of the press.
The outcome of the decision below will embolden the
government to act as the final arbiter of truth, chill
investigative journalism, and suppress dissenting
viewpoints.
The D.C. Circuit’s opinion has wide-reaching
implications. Now, nothing prevents local and state
governmental agencies, parroting the Congressional
press galleries’ rules, from enacting similar rules that
give them unbridled discretion over credentialing
decisions. Whether these rules are permissible will
thus be a question that recurs nationwide.
Accordingly, this case deserves certiorari to resolve
the important circuit splits that currently undermine
the unbridled discretion doctrine.
In sum, “it would be intolerable to leave
unanswered . . . [the] important question[s] of freedom
21
of the press under the First Amendment” that are
presented by this case. Miami Herald Pub. Co. v.
Tornillo, 418 U.S. 241, 247 n. 6 (1974). Doing so will
“only further harm the operation of a free press.” Id.
CONCLUSION
For the foregoing reasons, the Court should grant
the petition for writ of certiorari.
Respectfully submitted,
JOSH DIXON
Counsel of Record
MARK TRAMMELL
COURTNEY CORBELLO
CENTER FOR AMERICAN LIBERTY
2145 14th Avenue, Suite 8
Vero Beach, FL 32960
JDixon@libertycenter.org
(703) 687-6200
Attorneys for Petitioner
September 2025
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
DISTRICT OF COLU M BI A CIRCUIT,
FILED APRIL 8, 2025 . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — MEMORANDUM OPINION
A ND ORDER OF THE U NIT ED
STATES DISTRICT COURT FOR THE
DI S T R IC T OF C OLU M BI A , F I L E D
DECEMBER 7, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . 26a
APPENDIX C — DENIAL OF REHEARING
EN BA NC OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT
OF C OLU M BI A C I R C U I T, F I L E D
JUNE 9, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77a
APPENDIX D — DENIAL OF PANEL REHEA RING OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT, FILED JUNE 9,
2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79a
APPENDIX E — HOUSE/SENATE PRESS
RULES AND REGULATIONS . . . . . . . . . . . . . . . 81a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT, FILED APRIL 8, 2025
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 24-5004
SIMON ATEBA,
APPELLANT,
v.
KAROLINE C. LEAVITT, IN HER OFFICIAL
CAPACITY AS PRESS SECRETARY TO THE
PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES.
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-02321)
Argued October 15, 2024
Decided April 8, 2025
Before: Wilkins and Pan, Circuit Judges, and Rogers,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Pan.
Pan, Circuit Judge: Simon Ateba is a journalist who
seeks preferred access to the White House Press Area
with a special press credential known as a “hard pass.”
The White House issues hard passes only to reporters who
are accredited by either the Supreme Court Press Gallery
2a
Appendix A
or a congressional press gallery. That policy ensures that
holders of hard passes are bona fide journalists. The
White House relies on the press galleries of the Supreme
Court and Congress to make that determination because
it has not established its own committee to review the
qualifications of journalists.
Ateba applied for membership in the Senate Daily
Press Gallery as a prerequisite to securing a hard pass.
That application is still under consideration. In the
meantime, he has accessed the Press Area with a daily
pass that requires him to wait for an escort to take him
there. Ateba argues that the White House Hard Pass
Policy violates the First Amendment because it burdens
his access to the Press Area and conditions fuller access on
his accreditation by the Senate Daily Press Gallery, which
exercises unbridled discretion in determining whom to
certify and sets no deadline for adjudicating applications.
Because the Hard Pass Policy is both reasonable and
viewpoint neutral, we reject Ateba’s First Amendment
challenge.1
1. Ateba filed this appeal challenging the Hard Pass Policy on
January 4, 2024. Due to the change in administrations on January
20, 2025, the court ordered the parties to file supplemental briefs
regarding the status of the challenged Hard Pass Policy and whether
this appeal has become moot. Ateba’s supplemental brief states that
he still has not received a hard pass. The government’s supplemental
brief states that the case is not moot because the White House
has not “formally rescind[ed]” the requirement that “condition[s]
eligibility for a White House hard pass on accreditation by the
congressional and Supreme Court galleries.” Gov’t Suppl. Br. 3. In
light of the parties’ representations, we conclude that this case is
not moot and review the judgment of the district court based on the
record before us.
3a
Appendix A
I.
A.
The White House is the official residence of the
President of the United States. See 3 U.S.C. § 102; The
White House Building, https://perma.cc/FKC8-QA2S.
It includes the President’s private living quarters as well
as government office space. See Ateba v. Jean-Pierre, 706
F. Supp. 3d 63, 69 (D.D.C. 2023). The White House Press
Area consists of the briefing room, the press offices, and
certain other locations in and around the White House
that are open to correspondents. The Press Area is where
journalists attend press briefings, interview White House
officials, and report on the day-to-day activities of the
administration.
The White House issues two types of passes that give
journalists access to the Press Area. A “hard pass” allows
its bearer to use an expedited security line and to enter
the Press Area without an escort. Reporters who do not
have hard passes may use a “day pass,” which requires
reporters to “resubmit [a] form for every day they plan
to access the Press Area.” Ateba, 706 F. Supp. 3d at 70.
Day-pass holders must wait for an escort to take them
from the White House gate to the Press Area, which may
take up to 45 minutes. Both types of pass holders have
the same privileges once they are inside the Press Area.
In May 2023, the White House announced that all
hard passes would expire by the end of July 2023, and
that correspondents seeking new hard passes would have
to reapply under the terms of a revamped Hard Pass
4a
Appendix A
Policy. The White House explained that it had revised its
policy to “be consistent with . . . prior administrations.”
Ateba, 706 F. Supp. 3d at 71. The White House also noted
that the new policy would reduce the number of passes in
circulation, which would address administrability issues
and security risks.
The Hard Pass Policy requires “[a]ccreditation by a
press gallery in either the Supreme Court, U.S. Senate
or U.S. House of Representatives.” Ateba, 706 F. Supp.
3d at 71. Except for two years, the White House has
preconditioned hard passes on a journalist’s certification
by an outside body for over forty years. See Sherrill v.
Knight, 569 F.2d 124, 129 n.19, 186 U.S. App. D.C. 293
(D.C. Cir. 1977). A key purpose of the accreditation
requirement is to ensure that hard-pass holders are bona
fide journalists. See, e.g., id. (noting that “the applicant is
required to have a pass to the House and Senate galleries
because this verifies the ‘professional credentials’ of the
applicant”). The Hard Pass Policy also requires applicants
to be employed by a news organization; to have a physical
address, whether residential or professional, in the
greater Washington, D.C., area; to be assigned to cover
the White House on a regular basis; to have accessed the
White House at least once during the previous six months
for work or to have proof of employment within the last
three months to cover the White House; and to submit to
an investigation by the Secret Service, if necessary.
After the Hard Pass Policy went into effect, around
500 journalists lost their hard passes, including Simon
Ateba. Ateba is the White House correspondent for Today
5a
Appendix A
News Africa, “a daily online news publication covering
American politics and relations between the United States
and African countries.” Ateba, 706 F. Supp. 3d at 70. He
held a hard pass from February 2021 through July 2023.
Before that, he used day passes to enter the Press Area
for three years, from 2018 to 2021. After Ateba’s hard
pass expired due to the implementation of the Hard Pass
Policy, he went back to accessing the Press Area with day
passes. The record reflects that he has never been denied
a day pass when he sought one. 2
In pursuit of a new hard pass, Ateba applied to the
Senate Daily Press Gallery for a press credential in June
2023. The congressional press galleries are administered
by a Standing Committee of Correspondents, which has
five members that are elected by accredited members of
the galleries. The Standing Committee includes reporters
from Fox News, The Washington Post, The New York
Times, and The Wall Street Journal. According to the
Governing Rules of the Senate Daily Press Gallery,
“[p]ersons desiring admission to the press galleries of
Congress shall make application in accordance with”
House and Senate rules that are “interpreted and
administered by the Standing Committee” “subject to
the review and an approval by the Senate Committee
on Rules and Administration.” J.A. 147. The Governing
Rules further provide that the Standing Committee
2. Ateba asserts in his supplemental brief that the Trump
Administration has denied him day passes. But that change in
circumstances is not in the record on appeal and we therefore may
not consider it. See, e.g., Rosewell v. LaSalle Nat’l Bank, 450 U.S.
503, 518 n.22, 101 S. Ct. 1221, 67 L. Ed. 2d 464 (1981).
6a
Appendix A
“shall limit membership in the press galleries to bona fide
correspondents of repute in their profession, under such
rules as the Standing Committee of Correspondents shall
prescribe.” J.A. 147. 3 In addition, under the Governing
Rules, a member of the press galleries must be a “fulltime, paid correspondent” of a “news organization”; “must
reside in the Washington, D.C. area”; and “must not be
engaged in any lobbying or paid advocacy, advertising,
publicity or promotion work.” J.A. 24-25, 148. The Rules do
not include a deadline by which the Standing Committee
must adjudicate a membership application.
B.
With his application to become a member of the Senate
Daily Press Gallery still pending, Ateba filed suit against
the White House Press Secretary in the district court. As
relevant here, Ateba brought a facial First Amendment
challenge to the Hard Pass Policy. 4 He asserted that
the Hard Pass Policy is unreasonable because it confers
3. A requirement that journalists be “of repute” has been in
effect since 1888 and has origins from before then. See Off. Cong.
Directory, 50th Cong. 160 (2d ed. 1888) [https://perma.cc/BH46VRA4] (applications for accreditation “shall be authenticated in a
manner that shall be satisfactory to the Standing Committee of
Correspondents, who shall see that the occupation of the gallery is
confined to bona-fide correspondents of reputable standing in their
business”).
4. At eba a lso a rg ued that the Ha rd Pass Pol icy was
unconstitutional as applied to him, and that the Secret Service’s
cancellation of his hard pass violated the Administrative Procedure
Act. Ateba does not renew those claims on appeal.
7a
Appendix A
unbridled discretion on the press galleries of the Supreme
Court and Congress to determine who should receive
preferred access to the White House Press Area. 5 He
further claimed that it was unreasonable for the White
House to require him to be accredited by another branch
of government before applying for a hard pass, and
complained that the press galleries imposed no timeframe
or deadlines for processing his membership application.
The district court granted the White House’s motion
for summary judgment. The district court concluded
that Ateba had suffered a cognizable First Amendment
injury because entering the Press Area with a day pass
was more burdensome than with a hard pass. It decided,
5. Although Ateba raises a facial challenge to the Hard
Pass Policy, it is permissible for him to focus on his application
for membership in the Senate Daily Press Gallery to support his
argument that the Policy confers unbridled discretion on external
credentialing bodies. In a typical facial attack, plaintiffs need to
establish “that no set of circumstances exists under which [the
challenged law] would be valid.” United States v. Salerno, 481 U.S.
739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). But in the context of
a rule that “delegates overly broad discretion to the decisionmaker,”
plaintiffs may facially challenge the rule even though some
applications of the rule “may be constitutionally unobjectionable,”
because “every application creates an impermissible risk of
suppression of ideas.” See Forsyth Cnty. v. Nationalist Movement,
505 U.S. 123, 129, 133, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992).
Thus, Ateba may bring a facial challenge based on his contention
that the Hard Pass Policy creates a risk of suppression of ideas by
allowing outside credentialing bodies to exercise unbridled discretion
to determine who may access the Press Area; and he may support
that argument with evidence that the Senate Daily Press Gallery
exercises unbridled discretion in its rules of admission.
8a
Appendix A
however, that the White House acted reasonably under
the First Amendment when it outsourced part of its presscredentialing process. The district court also ruled that the
Senate Daily Press Gallery did not impermissibly exercise
discretion in deciding who could become a member of the
gallery; and that extraordinary procedural protections —
such as requiring deadlines for adjudicating membership
applications — were not constitutionally required.
Ateba filed a timely appeal. We have jurisdiction under
28 U.S.C. § 1291.
II.
The First Amendment limits the restrictions that
the government may impose on speech, including speech
on government property. Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800, 105 S.
Ct. 3439, 87 L. Ed. 2d 567 (1985). Ateba asserts that the
Hard Pass Policy violates his First Amendment rights
because it burdens his access to the White House Press
Area, which is government property where speech occurs.
He argues that the Hard Pass Policy is unreasonable
because it requires him to seek a press credential from
another branch of the government that he does not want
to cover, and allows an outside credentialing body, such
as the Senate Daily Press Gallery, to exercise unbridled
discretion in abridging his speech. To support his
argument that the Senate Daily Press Gallery exercises
such unbridled discretion, he points to: (1) the gallery’s
governing rule that limits membership to “bona fide
correspondents of repute in their profession,” J.A. 147;
9a
Appendix A
and (2) the gallery’s failure to impose any deadline for
its processing of membership applications. We find his
arguments unpersuasive.6
A.
As an initial matter, the government argues that
Ateba’s asserted constitutional harm is de minimis and
therefore not cognizable. Relying on out-of-circuit cases,
the government argues that withdrawing preferential
access to government property or providing less access
6. Ateba also argues that the credentialing process of the
Senate Daily Press Gallery violates the unbridled discretion doctrine
because the Gallery’s membership decisions are not subject to
judicial review. He asserts that the Gallery should be required to
provide written reasons for the denial of a membership application
and complains that the Speech and Debate Clause precludes judicial
review. But Ateba failed to adequately preserve those claims for
appeal. Before the district court, he suggested only that the White
House outsourced credentialing in an “attempt . . . to immunize its
credentialing scheme from suit,” and claimed that the Hard Pass
Policy was “arbitrary and unreasonable” for requiring an outside
press credential. See Pl’s Combined Mem. Supp. Summ. J. & Opposing
Def’s Mot. Summ. J. 16, ECF No. 23; J.A. 156-57 (reiterating same
claim at oral argument). That conclusory argument was insufficient
to put the district court on notice that he was invoking the unbridled
discretion doctrine to challenge the lack of judicial review, in specific
reliance on the Gallery’s failure to provide written decisions and the
barrier posed by the Speech and Debate Clause. See United States
v. Philip Morris USA, Inc., 396 F.3d 1190, 1195, 364 U.S. App. D.C.
454 (D.C. Cir. 2005) (“litigant does not properly raise an issue by
addressing it in a cursory fashion, with only bare-bones arguments”);
United States v. Miller, 799 F.3d 1097, 1108, 419 U.S. App. D.C. 63
(D.C. Cir. 2015).
10a
Appendix A
for some reporters to cover government officials does
not implicate the First Amendment. See ACLU of Md.,
Inc. v. Wicomico Cnty., 999 F.2d 780, 786 & n.6 (4th Cir.
1993); Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 416, 418
(4th Cir. 2006). But the cases cited by the government
do not address facial First Amendment challenges to
a regulatory scheme, and instead consider claims of
retaliation for protected activity. Although the Fourth
Circuit did characterize the harms at issue in each case as
“de minimis,” it held that the government’s actions were
insufficient to constitute retaliation, and did not speak to
what might constitute a cognizable injury in the different
context of a facial First Amendment challenge. See ACLU
of Md., 999 F.2d at 786 n.6 (“We merely find that these
§ 1983 plaintiffs suffered no more than a de minimis
inconvenience and that, on the facts of this case, such
inconvenience does not constitute cognizable retaliation
under the First Amendment.”); Balt. Sun, 437 F.3d at
416 (“A plaintiff seeking to recover for retaliation must
show that the defendant’s conduct resulted in something
more than a de minimis inconvenience to her exercise of
First Amendment rights.” (cleaned up)). It appears, then,
that the government’s theory is not well-supported by the
cited precedents.
Nevertheless, the record does reflect that Ateba has
maintained access to the Press Area by using day passes.
A hard pass merely offers convenience, allowing him to
enter more quickly and without an escort, and relieving
him of the obligation to apply for day passes. The lesser
burden on Ateba distinguishes this case from our other
cases involving the White House Press Area, which
11a
Appendix A
considered only the denial of access to that space. See
Sherrill, 569 F.2d at 130 (concerning the denial of a hard
pass for security reasons that resulted in “exclusion . . .
from White House press facilities”); Karem v. Trump,
960 F.3d 656, 665, 447 U.S. App. D.C. 103 (D.C. Cir. 2020)
(concerning a “month-long loss of . . . White House access”).
Furthermore, the inconvenience of not having a hard pass
that assures preferential access differs significantly from
the burden imposed by licensing schemes that preclude
some speakers from using a forum altogether. See, e.g.,
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S.
750, 769-70, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988)
(concerning the grant of licenses to place newsracks on
government property).
Although the government’s argument has some force,
we need not resolve whether Ateba states a cognizable
injury under the First Amendment. See Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 346, 56 S. Ct. 466, 80 L.
Ed. 688 (1936) (Brandeis, J., concurring) (“The Court will
not ‘anticipate a question of constitutional law in advance
of the necessity of deciding it.’” (quoting Liverpool, N.Y.
& Phila. S.S. Co. v. Emigration Comm’rs, 113 U.S. 33,
39, 5 S. Ct. 352, 28 L. Ed. 899 (1885)). Even assuming
that the lack of a hard pass is a First Amendment harm,
the burdens imposed by the Hard Pass Policy are not
unconstitutional.7
7. Because we assume that Ateba has asserted a First
Amendment injury, we do not consider the government’s argument
that Ateba’s claims implicate only a “noncommunicative, preparatory
step in the production of speech” and therefore enjoy no First
Amendment protections. Gov’t Br. 21-22, 31.
12a
Appendix A
B.
“[T]o evaluate government restrictions on purely
private speech that occurs on government property,” we
first consider the level of First Amendment scrutiny that
should be applied. Walker v. Tex. Div., Sons of Confederate
Veterans, Inc., 576 U.S. 200, 215, 135 S. Ct. 2239, 192 L.
Ed. 2d 274 (2015). The level of scrutiny depends on the
type of forum for speech that has been created by the
government. See Boardley v. United States DOI, 615 F.3d
508, 514, 392 U.S. App. D.C. 255 (D.C. Cir. 2010). “As a
general principle, ‘the extent to which the Government can
control access [to a forum it owns or controls] depends on
the nature of the relevant forum.’” Bryant v. Gates, 532
F.3d 888, 894, 382 U.S. App. D.C. 287 (D.C. Cir. 2008)
(quoting Cornelius, 473 U.S. at 800) (alteration in original).
Here, the parties dispute whether the Press Area
is a “nonpublic forum” or a “limited public forum.” In
particular, the government contends that the Press Area
is “at most, a nonpublic forum where the rule against
unbridled discretion does not apply.” Gov’t Br. 22, 26.
The government asserts that it has “‘far more leeway to
regulate speech’” in a nonpublic forum, id. at 26 (quoting
Price v. Garland, 45 F.4th 1059, 1068, 458 U.S. App. D.C.
825 (D.C. Cir. 2022)); and that “‘[a]ll of the modern cases
in which the Supreme Court has set forth the unbridled
discretion doctrine have involved public fora,’” id. at 28
(quoting Griffin v. Sec’y of Veterans Affs., 288 F.3d 1309,
1321 (Fed. Cir. 2002)). We agree with the government
that the Press Area is a nonpublic forum, but we disagree
with its claim that the unbridled discretion doctrine is
categorically inapplicable there, see infra Part D.
13a
Appendix A
A nonpublic forum is government property “that
is not by tradition or designation a forum for public
communication,” such as a government office building.
Minn. Voters All. v. Mansky, 585 U.S. 1, 11, 138 S. Ct.
1876, 201 L. Ed. 2d 201 (2018) (quoting Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.
Ct. 948, 74 L. Ed. 2d 794 (1983)). Although the government
is not required to open such spaces for any speech at
all, the government creates a “nonpublic forum” when
it provides “‘selective access for individual speakers.’”
Bryant, 532 F.3d at 895 (quoting Ark. Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 679, 118 S. Ct. 1633,
140 L. Ed. 2d 875 (1998)). For example, in Cornelius, the
Supreme Court held that the government’s Combined
Federal Campaign charity drive was a nonpublic forum,
because the government limited inclusion on the list
of approved charities to “appropriate” organizations
that had to seek permission to participate. 473 U.S. at
804. Similarly, we have held that United States Capitol
buildings are nonpublic forums, even though members of
the public regularly enter for the purpose of expressive
activity, because entry is still “strictly regulated” and the
communications are “scheduled and controlled.” United
States v. Nassif, 97 F.4th 968, 976-77 (D.C. Cir. 2024)
(cleaned up).
By contrast, a “limited public forum” is government
property that is made available for “use by certain groups
or dedicated solely to the discussion of certain subjects.”
Price, 45 F.4th at 1068 (quoting Pleasant Grove City
v. Summum, 555 U.S. 460, 470, 129 S. Ct. 1125, 172 L.
Ed. 2d 853 (2009)). Such a forum is generally open to
the designated groups or for the designated purpose
14a
Appendix A
of discussing particular topics. See Christian Legal
Soc’y Chapter of the Univ. of Cal., Hastings Coll. of L. v.
Martinez, 561 U.S. 661, 681, 130 S. Ct. 2971, 177 L. Ed.
2d 838 (2010) (“a defining characteristic” of limited public
forums” is the government’s authority to “reserve them
for certain groups” (cleaned up)); Perry, 460 U.S. at 47-48
(noting that a limited public forum would be open only to
groups of “similar character”). For example, a student
activity fund at the University of Virginia that purported
to provide funds for all extracurricular activities that were
“related to the educational purpose of the University” was
deemed a limited public forum. Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 823-26, 115 S. Ct.
2510, 132 L. Ed. 2d 700 (1995) (cleaned up).
We conclude that the White House Press Area is
a nonpublic forum. To the extent the White House is
generally open to the public — for tours, for example —
the restrictions on entry are similar to those imposed at
the U.S. Capitol, which is a nonpublic forum. See Nassif,
97 F.4th at 977 (noting restricted hours and mandatory
security screening of persons and items entering the
Capitol buildings). The Press Area has its own set of
restrictions. The purpose of the Press Area is to provide
“press facilities for correspondents who need to report
therefrom,” Sherrill, 569 F.2d at 129, thereby enabling
select journalists to attend briefings by the Press Secretary
and to gather information about the administration.
Access to the Press Area is limited to journalists who
satisfy the White House’s admission criteria and secure
either a hard pass or a day pass to enter, subject to space
availability. In Sherrill, we acknowledged that entry to
15a
Appendix A
the Press Area may be selectively granted, noting that
the government is entitled to “exercis[e] expert judgment”
that may “be subjective in nature” when deciding who may
be barred from the Press Area for security reasons. Id. at
130. Although Sherrill predated modern forum analysis,
its description of the Press Area fits the definition of a
nonpublic First Amendment forum. Because the White
House “strictly regulate[s]” entry to the Press Area,
and briefings by the Press Secretary are “scheduled and
controlled,” the Press Area is a nonpublic forum. See
Nassif, 97 F.4th at 976-77 (cleaned up).
Ateba attempts to characterize the Press Area as
a limited public forum by arguing that it is open to a
class of journalists — i.e., all reporters who cover the
White House. But his argument fails to address the
limits that the White House imposes on who may be
admitted to the Press Area. Because the Press Area is
not generally open to a class of speakers (i.e., all White
House correspondents), we have no trouble concluding
that it is a nonpublic forum.
C.
As a nonpublic forum, access to the White House Press
Area “can be restricted as long as the restrictions are”
viewpoint neutral and reasonable. Cornelius, 473 U.S. at
800. The purpose of the forum is central to this analysis,
because the government may “reserve the [nonpublic]
forum for its intended purposes, communicative or
otherwise, as long as the regulation on speech is reasonable
and not an effort to suppress expression merely because
16a
Appendix A
public officials oppose the speaker’s view.” Perry, 460 U.S.
at 46. “Control over access to a nonpublic forum can be
based” even “on subject matter and speaker identity so
long as” it meets the requirements of reasonableness and
viewpoint neutrality. Cornelius, 473 U.S. at 806.
The restrictions imposed by the Hard Pass Policy
easily pass constitutional muster. First, the Hard
Pass Policy is reasonable. To meet that requirement,
a restriction “need not be the most reasonable or the
only reasonable” restriction. Cornelius, 473 U.S. at 808.
“[R]easonableness may be established by evidence in the
record or even by a commonsense inference.” Price, 45
F.4th at 1072 (cleaned up). The Supreme Court gives the
government substantial leeway to regulate access to a
nonpublic forum and has upheld a range of restrictions
that were justified in light of the forum’s purpose. See, e.g.,
Forbes, 523 U.S. at 682 (reasonable for a public television
broadcaster to exclude an independent political candidate
from a candidate debate because he had “generated
no appreciable public interest”); Cornelius, 473 U.S. at
808-09 (reasonable to exclude certain legal defense and
political advocacy organizations from the Combined
Federal Campaign charity drive because donations to
other charity causes were “more beneficial” and better
served the purpose of the charity drive).
Here, the White House has opted to issue hard
passes only to reporters who are accredited by either
the Supreme Court Press Gallery or a congressional
press gallery. That policy allows the White House to
rely on the credentialing decisions of established press
17a
Appendix A
galleries, which have formed committees of journalists
that evaluate the qualifications of reporters who seek to
enter nonpublic areas to cover the work of the government.
The White House does not have a press gallery and
has no comparable vetting system in place. It is surely
reasonable for the White House to open the Press Area
only to bona fide journalists and to revert to its longestablished practice of using press-gallery membership as
a measure of a reporter’s professional standing. Although
Ateba objects to being evaluated by fellow journalists
whom he claims are his “competitors,” Ateba Br. 18, it is
reasonable to allow established members of the profession
to make the credentialing decision. Moreover, the White
House’s stated reasons for reimposing the accreditation
requirement were reasonable — i.e., to conform with the
policies of previous administrations, and to implement a
stricter set of guidelines that would reduce the security
risks and administrative burdens associated with a high
number of hard passes. We have no basis to question such
discretionary policies that reasonably limit access to a
nonpublic forum, consistent with its purpose. 8
8. This case is distinghishable from our precedents in Sherrill
and Karem, which held that the White House violates due process
when it denies or suspends a journalist’s hard pass without providing
adequate procedures to challenge the denial or prior notice about
the grounds for the suspension. See Sherrill, 569 F.2d at 128, 130
(requiring White House to provide notice, opportunity to rebut, and
a written decision when denying a journalist’s hard pass application,
and to publish or make publicly known the standard it employs for
determining whether a journalist will obtain a press pass); Karem,
960 F.3d at 667 (before “punishing” a journalist for misbehavior by
suspending his hard pass for thirty days, White House was required
to provide fair notice of the “magnitude of the sanction that might be
18a
Appendix A
Second, the Hard Pass Policy is viewpoint neutral.
Viewpoint discrimination is an “egregious form of
content discrimination,” which occurs when a government
regulation “targets not subject matter, but particular
views taken by speakers on a subject.” Rosenberger, 515
U.S. at 829. The Hard Pass Policy does not reference
viewpoints in any way, and Ateba does not allege that
either the White House or the Senate Daily Press
Gallery denies press credentials based on the content of
a correspondent’s reporting.
Ateba generally argues that the Hard Pass Policy
is “per se viewpoint discriminatory” because it “fail[s]
to impose meaningful guardrails against viewpoint
discrimination.” Ateba Reply Br. 7-8. Although other
circuits have concluded that the exercise of unbridled
discretion to limit speech is per se viewpoint discrimination,
we have not joined them. See, e.g., Kaahumanu v. Hawaii,
682 F.3d 789, 806 (9th Cir. 2012); Child Evangelism
Fellowship of Md., Inc. v. Montgomery Cnty. Pub. Schs.,
457 F.3d 376, 384 (4th Cir. 2006); Polaris Amphitheater
Concerts, Inc. v. City of Westerville, 267 F.3d 503, 508-09
(6th Cir. 2001). Instead, we have held that a violation of the
unbridled discretion doctrine is generally unreasonable
under the First Amendment. Am. Freedom Def. Initiative
v. Wash. Metro. Area Transit Auth. (AFDI), 901 F.3d 356,
372, 438 U.S. App. D.C. 172 (D.C. Cir. 2018). We therefore
consider Ateba’s unbridled-discretion argument within
the framework of reasonableness.
imposed” for misbehavior (cleaned up)). Ateba does not raise a due
process claim and we therefore address only the reasonableness of
the Hard Pass Policy under the First Amendment.
19a
Appendix A
D.
Ateba’s primary argument is that the Hard Pass
Policy violates the First Amendment because it delegates
credentialing to the press galleries of the Supreme
Court and Congress, and those galleries can arbitrarily
limit press activity. Specifically, Ateba argues that the
Senate Daily Press Gallery has “unbridled discretion”
to grant press credentials only to those it considers
“bona fide correspondents of repute.” J.A. 147. Ateba
asserts that the “of repute” requirement is unduly broad
and essentially standardless. And the Hard Pass Policy
is unconstitutional, he claims, because it relies on the
gallery’s arbitrary credentialing decisions.
In the context of a licensing or permitting scheme
that controls access to a public forum, we have held that a
restriction is “not reasonable” under the First Amendment
if “it provides [the decisionmaker] with unbridled
discretion” to suppress expression — that is, when the rule
“is so broad as to provide . . . no meaningful constraint
upon [the government’s] exercise of the power to squelch
[speech].” AFDI, 901 F.3d at 363, 372; see also Lakewood,
486 U.S. at 755; Forsyth Cnty. v. Nationalist Movement,
505 U.S. 123, 133, 112 S. Ct. 2395, 120 L. Ed. 2d 101
(1992). By contrast, a rule that “is capable of reasoned
application . . . does not confer unbridled discretion upon”
the government. AFDI, 901 F.3d at 372. As we noted in
Boardley, “[i]t is not fatal to . . . regulations that they
endow [] officials with some measure of discretion.” 615
F.3d at 517. Rather, regulations must be “reasonably
specific and objective, and . . . not leave the decision ‘to the
20a
Appendix A
whim of the administrator.’” Thomas v. Chi. Park Dist.,
534 U.S. 316, 324, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2002)
(quoting Forsyth Cnty., 505 U.S. at 133)).
The government argues that we need not entertain
Ateba’s unbridled discretion claim because the White
House Press Area is a nonpublic forum, and the Supreme
Court has applied the unbridled discretion doctrine to
protect expression only in public forums. But just because
cases like Lakewood and Forsyth County considered local
ordinances that affected speech in public forums does not
mean that their reasoning has no traction in a nonpublic
forum. Although the government certainly has more
discretion to impose restrictions in a nonpublic forum,
such restrictions still must be reasonable in light of the
forum’s purpose, see supra Part C. And we have held that
the exercise of unbridled discretion to deny access to a
nonpublic forum is unreasonable. See AFDI, 901 F.3d at
364, 372. Here, Ateba argues that a credentialing body has
wielded unchecked power to restrict a journalist’s entry
to the White House Press Area. We cannot agree with
the government that he has no First Amendment claim
merely because the Press Area is a nonpublic forum.
Turning to the merits, we consider Ateba’s contention
that the “of repute” standard injects unbridled discretion
into the credentialing process because it allows the
Standing Committee to make arbitrary and unconstrained
membership decisions that ultimately restrict his access
to the White House Press Area. We are unpersuaded.
Ateba’s argument mischaracterizes the “of repute”
standard by isolating it and divorcing it from the other
21a
Appendix A
criteria that the Standing Committee applies to grant
membership in the Senate Daily Press Gallery. The
rule plainly states, in relevant part, that membership is
reserved for “bona fide correspondents of repute in their
profession, under such rules as the Standing Committee
of Correspondents shall prescribe.” J.A. 147 (emphasis
added). Under the provision’s own terms, the evaluation
of a journalist’s “reputation” must be informed by the
other rules prescribed by the Standing Committee. The
Governing Rules mandate, inter alia, that credentialed
correspondents work full-time for a news organization,
reside in the Washington, D.C., area, and not engage
in lobbying. When evaluating whether a rule confers
unbridled discretion on a government decisionmaker, we
must “presume any narrowing construction or practice to
which [the regulation] is fairly susceptible.” Lakewood, 486
U.S. at 770 n.11 (cleaned up). The Standing Committee’s
Governing Rules provide such a “narrowing construction”
and make the “of repute” criterion capable of “reasoned
application.” AFDI, 901 F.3d at 372.
Properly read, the Senate Daily Press Gallery’s
membership requirements are readily distinguishable
from the standardless rules that have been held to confer
too much discretion on decisionmakers. In Lakewood,
for example, the city ordinance at issue “contain[ed] no
explicit limits on the mayor’s discretion [to grant permits
for newspaper racks],” and he was required to do nothing
more than say that “it is not in the public interest”
when denying a permit. 486 U.S. at 769. There was no
“textual incorporation, binding judicial or administrative
construction, or well-established practice” that limited
22a
Appendix A
the mayor’s choices in any way. Id. at 770. Similarly, in
Forsyth County, the Supreme Court held that a county
ordinance that allowed an administrator to set a permit
fee for “any activity on public property,” based only on
“his own judgment of what would be reasonable,” violated
the unbridled discretion doctrine. 505 U.S. at 131-32.
Again, there were “no articulated standards either in
the ordinance or in the county’s established practice”
that limited the administrator’s power to charge fees.
Id. at 133.
In contrast to the regulations at issue in Lakewood
and Forsyth County, the Senate Daily Press Gallery’s
Governing Rules provide concrete guidelines that cabin
the Standing Committee’s discretion when it applies the “of
repute” standard. Ateba takes the “of repute” requirement
out of context and ignores that it is subject to “such rules
as the Standing Committee shall prescribe.” The crossreferenced Governing Rules provide “standards” that
“guid[e] the hand of the . . . administrator.” Forsyth Cnty.,
505 U.S. at 133. The Standing Committee therefore does
not exercise “unbridled discretion” in making pressgallery membership decisions.
E.
Ateba also asserts that the First Amendment requires
the Senate Daily Press Gallery to set timelines for
processing press-credentialing applications so that he
and other applicants may more promptly obtain a hard
pass. He claims that any credentialing scheme that allows
a decisionmaker unlimited time to process applications
23a
Appendix A
violates the unbridled discretion doctrine because it allows
the decisionmaker to indefinitely “censor” the applicants.
Ateba Br. 33. That theory fails, however, because the
processing delays at the Senate Daily Press Gallery do
not “censor” Ateba — the record shows that he is still
able to enter the White House Press Area with a day
pass while he awaits the adjudication of his press-gallery
application. Thus, even if Ateba’s access to the Press
Area is burdened, he has not established that any delay
in procuring accreditation by the Gallery renders the
Hard Pass Policy constitutionally unreasonable because
the Policy still allows him to access the First Amendment
forum.
In any event, neither the Supreme Court nor this court
has ever held that processing deadlines are constitutionally
required in the context of a content-neutral licensing
scheme. In Boardley, the appellant claimed that park
officials exercised “overly broad discretion” in granting or
denying permits to distribute printed matter in national
parks because the officials were not required to process
the permits within a “specific time period.” 615 F.3d
at 518. We rejected that argument, noting that “[m]ost
circuits have held content-neutral licensing schemes need
not contain explicit timeframes for processing permit
applications”; and that the Supreme Court has imposed
“extraordinary procedural safeguards” — like processing
deadlines — only on “content-based schemes.” Id. (citing
Freedman v. Maryland, 380 U.S. 51, 59, 85 S. Ct. 734, 13
L. Ed. 2d 649 (1965), and Thomas, 534 U.S. at 322-23).
Indeed, the Court in Thomas expressly noted that lesser
procedural protections are sufficient where content-based
24a
Appendix A
censorship is not an issue, and the government merely
exercises “traditional” authority to “ensure the safety and
convenience of the people,” as a means of “safeguarding
. . . good order.” 534 U.S. at 323 (cleaned up). The Hard
Pass Policy, which is intended to decrease the number
of hard passes in circulation for administrative and
security purposes, is the type of “traditional” exercise of
government authority that does not trigger heightened
procedural protections.9
***
In sum, we conclude that the White House Hard Pass
Policy does not violate the First Amendment. Assuming
that Ateba’s loss of preferential access to the Press Area
implicates the First Amendment at all, his rights have not
been impermissibly burdened because the White House’s
reliance on an outside credentialing body is both reasonable
and viewpoint neutral. Moreover, the role played by the
Senate Daily Press Gallery in the credentialing process
does not inject “unbridled discretion” into the process
because its membership decisions are guided by the
concrete standards enumerated in its Standing Committee
9. Ateba’s reliance on City of Littleton v. Z.J. Gifts D-4, L.L.C.,
541 U.S. 774, 782-83, 124 S. Ct. 2219, 159 L. Ed. 2d 84 (2004), is
misplaced. That case concerned prompt judicial review of the denial
of an “adult business” license, where securing a license determined
whether the expressive activity could happen at all. Id. Here, as
noted, Ateba has regular access to the Press Area with day passes,
which makes the extraordinary safeguard of an administrative
processing deadline for his Senate Daily Press Gallery application
unnecessary.
25a
Appendix A
Governing Rules; and the First Amendment does not
require the gallery to set a deadline for the adjudication
of membership applications. We therefore affirm the
judgment of the district court.
So ordered.
26a
Appendix B
APPENDIX B — MEMORANDUM
OPINION AND
ORDER OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA,
FILED DECEMBER 7, 2023
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 23-2321 (JDB)
SIMON ATEBA,
Plaintiff,
v.
KARINE JEAN-PIERRE, IN HER OFFICIAL
CAPACITY AS WHITE HOUSE PRESS
SECRETARY, et al.,
Defendants.
MEMORANDUM OPINION
For decades, the White House has granted special
access passes—known as hard passes—to journalists
tasked w ith repor ting on the President and his
administration. See generally Sherrill v. Knight, 569 F.2d
124, 186 U.S. App. D.C. 293 (D.C. Cir. 1977). Hard pass
holders can generally come and go from the White House
as they wish, subject to a security screening at the door.
On May 5, 2023, the White House announced changes to
the criteria for obtaining a hard pass, reimplementing a
requirement that had been in place for most of the last 50
years—that the applicant hold a press credential from the
27a
Appendix B
Supreme Court or one of the press galleries of the United
States Congress. Journalists who could not satisfy these
requirements by July 31, 2023, would lose their expedited
access. Simon Ateba, the White House correspondent
for Today News Africa, was one of about 500 journalists
whose hard passes were deactivated under this policy.
Ateba, who is known for interrupting press briefings
and attracting the ire of the Press Secretary, alleges
that the new policy was designed to exclude him from
the press room. In this lawsuit, he claims White House
Press Secretary Karine Jean-Pierre (the “White House”)
engaged in unconstitutional viewpoint discrimination
against him by changing the criteria, and that the new
hard pass policy unreasonably confers unbridled discretion
on the congressional press galleries. He also claims that
Director of the United States Secret Service Kimberly
Cheatle and the United States Secret Service (collectively
“the Secret Service”) acted arbitrarily and capriciously
in deactivating his hard pass. Before the Court are the
parties’ cross-motions for summary judgment.
Background
I.
Factual Background
A.
Press Access to the White House
As the residence and offices of the President, his
family, and his personal staff, access to the White
House is tightly controlled. However, “the White House
has voluntarily decided to establish press facilities for
correspondents who need to report therefrom.” Sherrill,
28a
Appendix B
569 F.2d at 124. The press facilities include the James S.
Brady Briefing Room, the press offices, the press apron,
the North Grounds Stand Up Area, and the Driveway
(collectively, the “Press Area”). Defs.’ Resp. to Pl.’s
Statement of Material Facts as to Which There Is No
Genuine Dispute [ECF No. 26-1] (“Defs.’ Resp. to Pl.’s
Facts”) ¶ 1.
The White House offers journalists two principal ways
of accessing the Press Area. First, a reporter may obtain
a “temporary press pass,” known as a “day pass,” which
is a daily credential issued upon application to the Secret
Service. Pl.’s Resp. to Defs.’ Statement of Material Facts
as to Which There Is No Genuine Dispute [ECF No. 23-3]
(“Pl.’s Resp. to Defs.’ Facts”) ¶¶ 2-3. Second, a reporter
can obtain a “permanent press pass,” known as a “hard
pass,” which is a credential that allows him or her to come
and go freely once the pass is issued. Id. ¶ 2.1 Day pass
and hard pass holders can access the Press Area at the
same times (from 5:30 a.m. to 10:30 p.m.). Id. ¶ 5; Third
Decl. of Nathan Fleischer, Asst. to the Special Agent in
Charge, Presidential Protective Div., U.S. Secret Service
[ECF No. 22-2] (“3d Fleischer Decl.”) ¶¶ 7-8. However, a
reporter with a day pass must await an escort from the
gate to the Press Area, which can take up to 45 minutes.
Defs.’ Resp. to Pl.’s Facts ¶¶ 3-4; see id. ¶ 4 (White House
disputing to the extent chaperones are available at the
top of each hour).
1. A third form of access, the “appointment press pass,” is not
at issue here. Pl.’s Resp. to Defs.’ Facts ¶ 2.
29a
Appendix B
Unlike a hard pass holder who can access the White
House as long as his or her pass is active, a day pass user
must submit a brief, online Secret Service form for each
day that he or she wants to access the Press Area. Pl.’s
Resp. to Defs.’ Facts ¶ 3; 3d Fleischer Decl. ¶ 9. Journalists
are directed to submit the form by 5:00 p.m. the night
before, although the White House has also submitted
evidence that passes have been granted day-of, including
to Ateba. Defs.’ Resp. to Pl.’s Facts ¶ 2. Because day passes
are good for one day only, journalists must resubmit the
form for every day they plan to access the Press Area. Id.
Journalists seeking long-term hard passes must
secure approval from the Secret Service and the White
House. The Secret Service reviews “whether the applicant
presents a potential source of physical danger to the
President and/or the family of the President so serious
as to justify his or her exclusion from White House press
privileges.” 31 C.F.R. § 409.1. The White House sets and
enforces the remaining criteria for approval. See Pl.’s
Resp. to Defs.’ Facts ¶ 1. These criteria are discussed at
length below.
B. Simon Ateba
Ateba is the White House correspondent for Today
News Africa, “a daily online news publication covering
American politics and relations between the United States
and African countries.” Verified Compl. [ECF No. 1]
(“Compl.”) ¶ 3; see Pl.’s Resp. to Defs.’ Facts ¶ 6. He has
worked as a journalist for fifteen years, the last five as a
White House correspondent. Compl. ¶¶ 3, 38. For his first
30a
Appendix B
three years as a White House correspondent, he entered
the White House with a day pass; from February 2021
through July 2023, he held a hard pass. Pl.’s Resp. to Defs.’
Facts ¶ 7. During this time, he alleges, he was ignored by
the Press Secretary, who generally refused to take his
questions or grant him interviews with the President. See
Compl. ¶¶ 42-45; Defs.’ Resp. to Pl.’s Facts ¶ 9.
Ateba claims that in response to this alleged treatment,
he has taken to speaking over the Press Secretary and
other correspondents during White House briefings.
Compl. ¶¶ 45-53; see Pl.’s Resp. to Defs.’ Facts ¶ 11. In one
notable incident, on March 20, 2023, he interrupted the
Press Secretary’s introduction of the cast members of the
television show “Ted Lasso,” who were at the White House
to speak about mental health. See Compl. ¶ 49; Defs.’ Resp.
to Pl.’s Facts ¶ 10. The disturbance resulted in national
news coverage. See id. ¶ 50. His pattern of disruption has
drawn rebuke from the White House Press Secretary
and other correspondents. Id. ¶¶ 48, 50, 52. Even amid
the well-known rough-and-tumble atmosphere of the
White House Press Area, see Karem v. Trump, 960 F.3d
656, 665, 447 U.S. App. D.C. 103 (D.C. Cir. 2020), Ateba’s
behavior has turned heads. See Compl. ¶¶ 45-53; Defs.’
Resp. to Pl.’s Facts ¶ 20.
C.
Changes in White House Policy
On May 5, 2023, the White House announced two new
policies relating to White House access. First, the White
House issued a conduct policy, setting forth expectations
for behavior in the Press Area, and the process for
revoking hard pass credentials of journalists who did not
31a
Appendix B
comply (“Conduct Policy”). Pl.’s Resp. to Defs.’ Facts ¶ 10;
see Compl., Ex. A [ECF No. 1-1] (“May 5, 2023 Letter”)
at 2. Second, the White House announced that all hard
passes would expire on July 31, 2023, unless the holder
met the following criteria (“Hard Pass Policy”):
1. Full-time employment with an organization
whose pr i ncipa l busi ness is news
dissemination (If you are freelance, we will
need letters from two news organizations
describing your affiliation, or, if you
freelance primarily for one organization,
a letter from that organization describing
the extent and duration of your relationship
with the organization);
2. Physical address (either residential or
professional) in the greater Washington,
D.C. area;
3. Have accessed the White House campus at
least once during the prior six months for
work, or have proof of employment within
the last three months to cover the White
House;
4. Assignment to cover (or provide technical
support in covering) the White House on a
regular basis;
5. Accreditation by a press gallery in either the
Supreme Court, U.S. Senate or U.S. House
of Representatives; and
32a
Appendix B
6. Willingness to submit to any necessary
investigation by the U.S. Secret Service to
determine eligibility for access to the White
House complex, where Secret Service will
determine eligibility based on whether the
applicant presents a potential risk to the
safety or security of the President, the Vice
President, or the White House complex.
Pl.’s Resp. to Defs.’ Facts ¶ 8-9. The White House did not
explain the change, except to say that it sought to “be
consistent with . . . prior administrations.” May 5, 2023
Letter. In briefing, the White House suggested the change
was made to reduce the number of passes in circulation.
Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ. J. [ECF
No. 22-1] (“Defs.’ Mot.”) at 2 (“[U]nder the now-rescinded
policy, hard passes were automatically renewed and there
were an excessive number in circulation—including many
that were no longer in active use, leading to concerns
with administrability and the security risks inherent in
the ballooning number of passes that grant access to the
White House.”).
Principally at issue in this case is Rule No. 5, the
requirement that applicants hold credentials from the
Supreme Court or one of the congressional press galleries.
Access to the Supreme Court press gallery is determined
by the public information office and is limited to journalists
who cover the Court full time. See Defs.’ Resp. to Pl.’s
Facts ¶ 14. Ateba has not secured a credential from the
Supreme Court. See id. ¶ 14; Compl. ¶ 77; id, Ex. D [ECF
No. 1-4] (Letter to Supreme Court Public Information
Office). Given the undisputed and significant limitations
33a
Appendix B
on Supreme Court press passes, the Court credits Ateba’s
assertion that it would not be possible for him to obtain
such a credential. The Court therefore focuses its analysis
on the congressional press galleries’ rules.
The congressional press galleries have long provided
professional credentialing to journalists. See Consumers
Union of U.S., Inc. v. Periodical Correspondents’ Ass’n,
515 F.2d 1341, 1343-44, 169 U.S. App. D.C. 370 (D.C. Cir.
1975) (discussing history of credential press galleries and
credentialing rules). The House and Senate each host four
galleries for different types of journalists: daily press,
periodical press, radio/TV, and press photographers. See
id. Committees of journalists administer the credentialing
requirements for the galleries, and journalists must renew
their credentials every two years. See Defs.’ Resp. to Pl.’s
Facts ¶¶ 15-16. The credentialing requirements for the
congressional press galleries are similar to each other.
The rules for the Senate Daily Press Gallery (also known
as the Senate Press Gallery)—to which Ateba has sought
access—are, in pertinent part:
3. The Standing Committee of Correspondents
shall limit membership in the press galleries
to bona fide correspondents of repute in
their profession, under such rules as the
Standing Committee of Correspondents
shall prescribe.
4. An applicant for press credentials through
the Daily Press Galleries must establish to
the satisfaction of the Standing Committee
of Correspondents that he or she is a full-
34a
Appendix B
time, paid correspondent who requires onsite access to congressional members and
staff.
Correspondents must be employed by a news
organization:
(a) w i t h G e n e r a l P u b l i c a t i o n
periodicals mailing privileges
under U.S. Postal Service rules,
and which publishes daily; or
(b) whose principal business is the
daily dissemination of original
news and opinion of interest to a
broad segment of the public, and
which has published continuously
for 18 months.
The applicant must reside in the Washington,
D.C. area, and must not be engaged in any
lobbying or paid advocacy, advertising, publicity
or promotion work for any individual, political
party, corporation, organization, or agency
of the U.S. Government, or in prosecuting
any claim before Congress or any federal
government department, and will not do so
while a member of the Daily Press Galleries.
Applicants’ publications must be editorially
independent of any institution, foundation
or interest group that lobbies the federal
government, or that is not principally a
35a
Appendix B
general news organization. Failure to provide
information to the Standing Committee for this
determination, or misrepresenting information,
can result in the denial or revocation of
credentials.
Req. for Judicial Notice, Ex. E (U.S. Senate Daily Press
Gallery, Governing Rules) [ECF No. 24-6] (“Senate
Daily Press Gallery Rules”); see U.S. House Periodical
Press Gallery, Rules and Regulations, https://periodical.
house.gov/accreditation/rules-and-regulations (“House
Periodical Press Gallery Rules”) (similar);2see Defs.’ Resp.
to Pl.’s Facts ¶¶ 17-19.
2. Ateba has submitted an unopposed motion for the Court to
take judicial notice of the following documents: (1) Brief of The White
House Correspondents’ Ass’n as Amicus Curiae Supp. Appellee,
Karem v. Trump, Case No. 19-5255, 960 F.3d 656, 447 U.S. App.
D.C. 103 [ECF No. 24-2]; (2) Transcript of Oral Decision, CNN v.
Trump, 1:18-cv-02610-TJK, at *7:19-22 (D.D.C. Nov. 16, 2018) [ECF
No. 24-3]; (3) Congressional News Media and the House and Senate
Press Galleries, Congressional Research Service (Apr. 13, 2017)
[ECF No. 24-4] at 4; (4) Periodical Press Gallery, Accreditation,
House Periodical Press Gallery [ECF No. 24-5]; and (5) Senate
Daily Press Gallery Rules. Req. for Judicial Notice [ECF No. 24].
The Court may take judicial notice of facts “not subject to
reasonable dispute” that are “generally known within the trial
court’s territorial jurisdiction” and “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). The motion is granted to the
extent the facts are relied upon in this opinion. The Court also takes
judicial notice of the rules of the House Periodical Press Gallery,
since Ateba has already pointed the Court to another part of that
gallery’s accreditation procedures. Because Ateba raises a facial
challenge to the policy, it is appropriate for the Court to consider
different rules under which a journalist can obtain a credential.
36a
Appendix B
D.
Effect of White House Policy Changes on Ateba
On July 11, 2023, Ateba received a reprimand letter
pursuant to the new Conduct Policy. Pl.’s Resp. to Defs.’
Facts ¶ 12. The letter outlined four instances when he
disrupted press briefings and afforded him an opportunity
to respond to the allegations. Compl., Ex. B [ECF No.
1-2] (“Reprimand Letter”) (detailing incidents on May
13, 2022, December 8, 2022, March 20, 2023, and June 26,
2023). While the letter contained a warning that Ateba’s
continued disruptions could result in the suspension or
revocation of his hard pass, the White House did not
revoke Ateba’s hard pass pursuant to the Conduct Policy.
Id.; see Pl.’s Resp. to Defs.’ Facts ¶ 12. On August 1, 2023,
the White House directed the Secret Service to deactivate
hard passes for approximately 500 journalists who did
not qualify under the new Hard Pass Policy. Pl.’s Resp.
to Defs.’ Facts ¶ 14. Ateba lacked a credential from the
Supreme Court or one of the congressional press galleries,
as required under Rule No. 5 of the Hard Pass Policy, and
his hard pass was deactivated. Id.
Ateba applied for a credential from the Senate Daily
Press Gallery on June 5, 2023. Defs.’ Resp. to Pl.’s Facts
¶ 17; see Compl., Ex. C [ECF No. 1-3] (Letter to Senate
Daily Press Gallery). His request is under consideration
but, as of October 11, 2023, has not been granted. Defs.’
Resp. to Pl.’s Facts ¶¶ 18-19. Ateba did not apply to renew
his hard pass before it was deactivated. See Pl.’s Resp. to
Defs.’ Facts ¶ 13. Ateba has continued to access the Press
Area with a day pass. Id. ¶ 15; see 3d Fleischer Decl. ¶ 17
(stating that, since Ateba’s hard pass was deactivated,
37a
Appendix B
he has been granted day pass access to the White House
each time he sought it, and that he has “entered the White
House on several of those occasions”).
II. Procedural Background
On August 10, 2023, Ateba sued White House Press
Secretary Karine Jean-Pierre, in her official capacity,
as well as Director of the United States Secret Service
Kimberly Cheatle, in her official capacity, and the
United States Secret Service. Compl. ¶¶ 19-21. Ateba
simultaneously moved for a preliminary injunction to
enjoin the Hard Pass Policy and restore his hard pass.
Pl.’s Mot. for Prelim. Inj. [ECF No. 2].
Ateba makes three principal claims. First, he alleges
that the Hard Pass Policy violates the First Amendment
on its face, because it confers “unbridled discretion” on
the congressional press gallery committees to determine
who can obtain a hard pass (Count One). Compl. ¶¶ 83-89.
Second, he alleges that the White House discriminated
against him based on his viewpoint by adopting Hard Pass
Policy criteria “specifically designed to exclude [him] from
eligibility” (Count Two). Id. ¶¶ 90-95. And third, Ateba
alleges the Secret Service violated the Administrative
Procedure Act (APA) by deactivating his hard pass
without reasoned explanation (Count Three). Id. ¶¶ 96-103.
The Court denied Ateba’s motion for a preliminary
injunction, concluding that Ateba had failed to show he was
“likely to suffer irreparable harm during the pendency
of this litigation.” Ateba v. Jean-Pierre, Civ. A. No. 23-
38a
Appendix B
2321 (JDB), 2023 U.S. Dist. LEXIS 157719, 2023 WL
5748567, at *1 (D.D.C. Sept. 6, 2023). The Court concluded
based on the facts presented that Ateba “remain[ed] able
to enter the White House using the day pass system,”
which the Court found was an “acceptable alternative
for the duration of the litigation.” 2023 U.S. Dist. LEXIS
157719, [WL] at *4. However, “so that the merits of Ateba’s
challenge [could] be swiftly adjudicated,” the Court
ordered the parties to submit summary judgment briefing
on an expedited schedule. 2023 U.S. Dist. LEXIS 157719,
[WL] at *1, *6.
The White House submitted a motion for summary
judgment on all three counts. Defs.’ Mot. Ateba submitted
a cross-motion for summary judgment on the facial First
Amendment challenge and the APA challenge. Pl.’s
Combined Mem. in Supp. of Summ. J. & Opp’n to Defs.’
Mot. for Summ. J. [ECF No. 23] (“Pl.’s Cross-Mot. &
Opp’n”). Ateba also asked the Court to deny the White
House’s motion for summary judgment on the viewpoint
discrimination challenge and order discovery from the
White House. Id. The Court held an oral argument
hearing on the summary judgment motions on November
2, 2023. The motions are now fully briefed and ripe for
decision.
Legal Standard
A movant is entitled to summary judgment if he can
show that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). At the summary judgment
39a
Appendix B
stage, the court must “examine the facts in the record
and all reasonable inferences derived therefrom in a
light most favorable to the nonmoving party.” Robinson
v. Pezzat, 818 F.3d 1, 8, 422 U.S. App. D.C. 35 (D.C. Cir.
2016) (internal quotation marks omitted). “This mode of
analysis serves to separate the jury functions of making
credibility determinations, weighing the evidence, and
drawing legitimate inferences from the facts from the
district court’s role as the arbiter of legal questions.”
Id. (cleaned up). “When parties file cross-motions for
summary judgment, each motion is viewed separately,
in the light most favorable to the non-moving party, with
the court determining, for each side, whether the Rule
56 standard has been met.” Lerch Bates, Inc. v. Michael
Blades & Assocs., Ltd., Civ. A. No. 20-2223 (BAH), 2023
U.S. Dist. LEXIS 171973, 2023 WL 6276643, at *9 (D.D.C.
Sept. 26, 2023).
ANALYSIS
I.
First Amendment Injury
The White House claims that Ateba’s First Amendment
challenges cannot get off the ground because he has not
suffered a cognizable First Amendment injury. Defs.’
Mot. at 6. According to the White House, since Ateba has
not lost access to the White House press briefings—only
expedited hard pass access—he has suffered a mere
inconvenience, not a violation of his First Amendment
rights. See Defs.’ Combined Opp’n to Pl.’s Mot. for Summ.
J. & Reply in Supp. of Defs.’ Mot. for Summ. J. [ECF No.
26] (“Defs.’ Reply & Opp’n”) at 1-3. The Court considers
40a
Appendix B
this argument relevant to Ateba’s facial challenge and his
viewpoint discrimination claim. 3
Generally, the First Amendment does not provide
journalists any greater right of access to government
property or information than it provides to members of
the public, despite the fact that access to government
information “might lead to more thorough or better
reporting.” JB Pictures, Inc. v. Dep’t of Def., 86 F.3d
236, 238, 318 U.S. App. D.C. 162 (D.C. Cir. 1996); see
Branzburg v. Hayes, 408 U.S. 665, 684, 92 S. Ct. 2646, 33
L. Ed. 2d 626 (1972). As it pertains to the press, the First
Amendment primarily protects the right to “communicate
information once it is obtained,” not the ability to collect
it. Houchins v. KQED, Inc., 438 U.S. 1, 9, 98 S. Ct. 2588,
57 L. Ed. 2d 553 (1978) (plurality opinion). Hence, courts
have generally refused to find that the First Amendment
requires government entities to admit press into places
not otherwise open to the public, provide enhanced access
to information under the government’s control, or afford
3. At oral argument, counsel for the White House acknowledged
that this argument—while described as a challenge to Ateba’s
“injury”—does not attack Ateba’s constitutional standing. Nor could
it. Ateba is plainly injured by losing the hard pass, which provided
him expedited access to the White House briefing room. See Flynt
v. Rumsfeld, 355 F.3d 697, 702, 359 U.S. App. D.C. 402 (D.C. Cir.
2004) (appellants had standing where they sought and were denied
access to accompany U.S. troops in combat); see also Zukerman v.
U.S. Postal Serv., 567 F. Supp. 3d 161, 170-71 (D.D.C. 2021) (“[F]or
Article III standing purposes at least, the required threshold is quite
low.”). The loss of the hard pass is traceable to actions of the White
House and the Secret Service. And his injury can be redressed by
an order that the defendants reconsider the Hard Pass Policy or
reinstate his hard pass.
41a
Appendix B
journalists heightened access to places open to the general
public. See, e.g., L.A. Police Dep’t v. United Reporting
Publ’g Corp., 528 U.S. 32, 40, 120 S. Ct. 483, 145 L. Ed.
2d 451 (1999) (“California could decide not to give out
arrestee information at all without violating the First
Amendment”); Houchins, 438 U.S. at 16 (“[T]he media
have no special right of access to [a jail] different from or
greater than that accorded the public generally.”); Flynt
v. Rumsfeld, 355 F.3d 697, 703, 359 U.S. App. D.C. 402
(D.C. Cir. 2004) (no First Amendment right for press to
travel with the military during combat); JB Pictures, 86
F.3d at 242 (no First Amendment right for media to attend
military funerals).
The First Amendment may, however, provide some
protections when journalists are denied access to areas
the government has specifically opened to the press. The
D.C. Circuit has read the First and Fifth Amendments
together to prohibit the denial of a journalist’s access
to the White House Press Area without due process
protections. Sherrill, 569 F.2d at 129-31; Karem, 960 F.3d
at 664-67. This Court has, correspondingly, concluded
that “the First and Fifth Amendments seem to require,
at a minimum, that before determining which media
organizations receive the limited access available, [a
government agency] must not only have some criteria
to guide its determinations, but must have a reasonable
way of assessing whether the criteria are met.” Getty
Images News Servs. Corp. v. Dep’t of Def., 193 F. Supp.
2d 112, 121 (D.D.C. 2002). Thus, where the Department
of Defense lacked an articulated process for deciding
which journalists could participate in the military’s media
flights to Guantanamo Bay in the wake of September 11,
42a
Appendix B
the plaintiffs had a cognizable injury under the First and
Fifth Amendments. Id.
While the D.C. Circuit did not reach this question
in Karem, the Court reads Sherrill to support a First
Amendment claim at least when a journalist is excluded
from the Press Area for arbitrary reasons. As the Sherrill
court stated, “White House press facilities having been
made publicly available as a source of information for
newsmen, the protection afforded newsgathering under
the first amendment guarantee of freedom of the press
requires that this access not be denied arbitrarily or
for less than compelling reasons.” Sherrill, 569 F.2d at
129 (internal citations and footnote omitted). The White
House’s contention that Sherrill is a “due process case,”
“despite [its] First Amendment overtones,” Defs.’ Reply
& Opp’n at 9, skips over a crucial part of Sherrill’s
analysis: although that court ultimately focused on the
Secret Service’s need to formalize security standards and
provide applicants notice and an opportunity to respond to
denials, the court first considered whether the standard
articulated by the Secret Service in litigation—”whether
the applicant presents a potential source of physical
danger to the President and/or his immediate family so
serious as to justify his exclusion”—comported with the
First Amendment. Sherrill, 569 F.2d at 130 (footnote
omitted).
Recent cases in other circuits have accepted the
premise that the denial of a reporter’s access to a press
briefing is a cognizable First Amendment violation,
reviewable in the traditional framework of a First
43a
Appendix B
Amendment forum and subject to an order requiring not
only due process, but access. See John K. MacIver Inst.
for Pub. Pol’y v. Evers, 994 F.3d 602, 610 (7th Cir. 2021)
(reviewing criteria to access a media briefing under a First
Amendment analysis for reasonableness and viewpoint
neutrality); TGP Communs., LLC v. Sellers, No. 22-16826,
2022 U.S. App. LEXIS 33641, 2022 WL 17484331, at *4-5
(9th Cir. Dec. 5, 2022) (same); cf. Huminski v. Corsones,
396 F.3d 53, 88 (2d Cir. 2005) (exclusion of individual
journalist from all state courthouses otherwise open to
press was “plainly overbroad” and “not ‘tailored’ to the
threat”); Nicholas v. Bratton, 376 F. Supp. 3d 232, 259-60
(S.D.N.Y. 2019) (reviewing journalists’ equal access claim
to crime scene under the First Amendment).
Unlike the prior cases involving restrictions on White
House access, however, this case does not concern a denial
of access to the Press Area. Ateba has lost his hard pass,
but he can still access the Press Area with a day pass.
Accordingly, Ateba asks the Court to find his access to
the Press Area has been burdened by the loss of his hard
pass, and that this burden constitutes a First Amendment
injury. Pl.’s Cross-Mot. & Opp’n at 17-18.4
The D.C. Circuit has not considered whether denial of
a hard pass, when the reporter can still access the Press
Area with a day pass, amounts to a First Amendment
4. Ateba also claims that loss of the hard pass itself is a
cognizable injury under the First Amendment under Sherrill
and Karem. Pl.’s Cross-Mot. & Opp’n at 17-18. While those cases
recognized a right in the pass, the loss of a hard pass there was
inextricably tied to the complete loss of access.
44a
Appendix B
injury. See Sherrill, 569 F.2d at 130 (noting that denial
of hard pass resulted in “exclusion . . . from White House
press facilities”); Karem, 960 F.3d at 665 (describing
sanction as “a month-long loss of White House access”).
Neither party has cited any case directly addressing
whether a burden on access to the Press Area (or any
similar press area, for that matter) constitutes a First
Amendment injury. Ateba urges the Court to rely on
the general principle that “[g]overnmental action that
‘burdens’ First Amendment activity inflicts a cognizable
injury no less than governmental action that ‘prohibit[s]’
such activity outright.” Pl.’s Mot. & Opp’n at 17 (quoting
Sorrell v. IMS Health, Inc., 564 U.S. 552, 566, 131 S. Ct.
2653, 180 L. Ed. 2d 544 (2011) (citing, inter alia, United
States v. Playboy Ent. Grp., 529 U.S. 803, 812, 120 S. Ct.
1878, 146 L. Ed. 2d 865 (2000) (limitations on television
programming time); and Minneapolis Star & Trib. Co.
v. Minn. Comm’r of Revenue, 460 U.S. 575, 582-83, 103
S. Ct. 1365, 75 L. Ed. 2d 295 (1983) (tax on the press))).
The White House counters that only burdens on the
“freedom of the media to communicate information”
are actionable, not burdens on obtaining information
from the government. Defs.’ Reply & Opp’n at 2 (quoting
Houchins, 438 U.S. at 9); see Houchins, 438 U.S. at 4-5
(no First Amendment violation when news reporters were
given “only limited access to the jail” on public tours
that did not reach area of alleged prisoner abuse); Zemel
v. Rusk, 381 U.S. 1, 17, 85 S. Ct. 1271, 14 L. Ed. 2d 179
(1965) (“[That] the prohibition of unauthorized entry into
the White House diminishes the citizen’s opportunities
to gather information . . . does not make entry into the
White House a First Amendment right.”); cf. ACLU of
45a
Appendix B
Md. v. Wicomico Cnty., 999 F.2d 780, 786 (4th Cir. 1993)
(county did not engage in First Amendment retaliation by
revoking an ACLU paralegal’s special inmate access due
to the ACLU’s lawsuit against the jail). However, as Ateba
argues elsewhere, his participation in press conferences
is arguably expressive. Because he “speaks through his
questions—broadcast on live television—which express a
point of view regarding the events he thinks are worthy of
discussion,” Pl.’s Cross-Mot. & Opp’n at 8, even burdens
on his access to the press area could affect his right to
“communicate information,” not only his right to collect it.
As an initial matter, the undisputed facts do not
support an inference that Ateba’s access to the Press Area
has been denied. It is undisputed that a day pass holder
may access the same parts of the White House at the
same times as a hard pass holder. And once the journalist
reaches the Press Area, a day pass holder is not subject
to any restrictions that would not also apply to a hard
pass holder. If a day pass holder misses a spontaneous
briefing, that is because he or she did not apply for a day
pass, not because he or she has been excluded from the
Press Area. No facts in the record suggest otherwise—
that, for example, seats in the Press Area are reserved for
hard pass holders, that day pass holders cannot bring in
cameras, or that certain events or places are open to hard
pass holders only. This case is, therefore, unlike Stevens v.
N.Y. Racing Ass’n, 665 F. Supp. 164 (E.D.N.Y 1987), where
the court found actionable a restriction prohibiting one
journalist from entering a racetrack with a camera, while
all other journalists were permitted to do so. Id. at 175.
46a
Appendix B
However, the undisputed facts also demonstrate that
being required to use a day pass instead of a hard pass
burdens Ateba’s Press Area access to some degree. Put
differently, the facts in the record support an inference
that a hard pass is a preferred form of access to a day
pass. Whereas a hard pass holder can enter the White
House at a moment’s notice, other journalists must apply
for a day pass up to a day in advance. Thus, a journalist
who does not prophylactically apply for day passes might
miss a late-scheduled press event. And while a hard pass
holder can walk directly inside after security screening,
a day pass holder must wait on an escort, which can take
up to forty-five minutes depending on when the journalist
arrives. Perhaps it is on account of these differences, or
changes in the White House day pass policy over time,
that the White House Correspondents Association has
remarked in previous litigation that “without the access
that a hard pass grants, a White House correspondent
cannot effectively perform his or her duties, which
include providing the public with on-the-spot news
coverage of unforeseen and unscheduled events, along
with cataloguing the daily activities of the head of the
executive branch.” Req. for Judicial Notice, Ex. A (Brief
of The White House Correspondents’ Ass’n as Amicus
Curiae Supporting Appellee at 3, Karem v. Trump, No.
19-5255 (D.C. Cir. Jan. 13, 2020)).
Ultimately, the Court concludes that Ateba has an
actionable First Amendment injury. As the D.C. Circuit
recognized in Sherrill, the White House has opened the
Press Area to journalists who need to report therefrom.
569 F.2d at 129. Although that case preceded modern-
47a
Appendix B
day forum analysis, the Sherrill court’s characterization
of the Press Area is akin to that of a First Amendment
forum—government property that public officials have
opened to certain members of the public for certain
types of communication (here, newsgathering). Other
circuits have similarly treated press briefings as First
Amendment forums. See Evers, 994 F.3d at 610; TGP
Communs., LLC, 2022 U.S. App. LEXIS 33641, 2022 WL
17484331, at *4-5. Accordingly, in deciding whether an
injury exists, the Court must consider principally whether
a burden on access to a First Amendment forum would
amount to an injury. Even in a nonpublic forum—where
government authority to restrict access is at its apex—a
plaintiff has an actionable claim when the government has
allegedly discriminated with respect to “who may use its
facilities and on what terms.” Chi. Acorn v. Metro. Pier
& Exposition Auth., 150 F.3d 695, 700 (7th Cir. 1998)
(emphasis added) (finding actionable government agency’s
disparate waiver of fees for use of meeting rooms). Where
the White House “press facilities are perceived as being
open to all bona fide Washington-based journalists,”
Sherrill, 569 F.2d at 129 (footnote omitted), disparate
forms of access to that forum are likewise actionable under
the First Amendment.
This is not a case, as the government urges, where
a member of the press seeks greater access—or better
terms—than members of the public. See Houchins, 438
U.S. at 4-5. Nor is it a case about journalists seeking
information in the government’s possession. See L.A.
Police Dep’t, 528 U.S. at 40. Rather, this case involves
a journalist seeking access to a forum—opened by the
48a
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White House—on the same terms as other journalists. To
conclude that only outright denials of access are actionable
would undermine the protections established by Sherrill,
for it would suggest that the White House could alter the
hard pass criteria—and thereby impose disparate burdens
on journalists seeking access to a place generally opened
to them—in entirely viewpoint- discriminatory ways, and
journalists would have no cause of action. Counsel for the
White House admitted as much at oral argument. Oral
Argument Rough Hr’g Tr. 35:2-16 (agreeing that under
the Court’s hypothetical policy granting hard passes only
to partisan news organizations, a journalist would have
no cause of action).
That is not to say that every restriction the White
House might impose on access to the White House violates
the First Amendment. Indeed, the Court will conclude
in this case that the Hard Pass Policy does not facially
violate the First Amendment. However, it does mean that
regulations as to who may obtain a hard pass—even when
a day pass is available—are subject to First Amendment
scrutiny. As the Court will discuss below, when the White
House decides who gets expedited access and who does
not, its regulations must be reasonable and viewpoint
neutral.
II. Facial Challenge to the Hard Pass Policy
Ateba claims the Hard Pass Policy facially violates
the First Amendment because the policy is unreasonable
and confers “unbridled discretion” on the Press Galleries
who supply the requisite credentials for obtaining a hard
49a
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pass. The Court concludes that the policy is reasonable,
and that discretion is sufficiently cabined to satisfy the
First Amendment.
A.
Legal Standards
When considering “[t]he amount of access to which the
government must give the public for First Amendment
activities,” courts generally apply forum analysis. Evers,
994 F.3d at 609. In a forum analysis, a court classifies
the government property by type of forum (i.e., public,
designated public, limited public, or nonpublic) and applies
the appropriate standard to evaluate the constitutionality
of limitations on the First Amendment activity. Id. 5
Courts have the “least tolerance for restrictions on First
Amendment freedoms” in public forums, id.,—places
where people have historically “assemble[d] and . . .
communicate[d] with others,” or which the government
has intentionally opened for that purpose. Price v.
5. The White House argues that the Press Area does not lend
itself to forum analysis at all, citing Price v. Garland, 45 F.4th 1059,
458 U.S. App. D.C. 825 (D.C. Cir. 2022). In Price, the D.C. Circuit
declined to apply the heightened protections of a public forum to
commercial filmmaking in a National Park, since “filmmaking, like
typing a manuscript, is not itself a communicative activity.” Id. at
1070. This argument misses the mark because participation in a news
conference is expressive, since reporters communicate with White
House staff and raise issues of public importance to the President and
his team. See Evers, 994 F.3d at 611-12; TGP Communs., LLC, 2022
U.S. App. LEXIS 33641, 2022 WL 17484331, at *4; cf. Price, 45 F.4th
at 1071 n.2 (distinguishing Evers because it “does not even deal with
filming” but rather applied forum analysis to “‘gathering information
for news dissemination’” (quoting Evers, 994 F.3d at 612)).
50a
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Garland, 45 F.4th 1059, 1067-68, 458 U.S. App. D.C. 825
(D.C. Cir. 2022). In public forums, regulations based on
the content of speech are subject to strict scrutiny—they
must be necessary to serve a compelling state interest
and narrowly drawn to achieve that end. Perry Educ.
Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 45, 103
S. Ct. 948, 74 L. Ed. 2d 794 (1983). Content-neutral time,
place and manner restrictions in public forums must meet
intermediate scrutiny—they must be narrowly tailored to
serve a significant government interest. Id. at 45-46. The
government has more latitude when regulating access to
nonpublic and limited public forums, i.e., places not opened
to public communication, or “limited to use by certain
groups or dedicated solely to the discussion of certain
subjects.” Price, 45 F.4th at 1068 (quoting Pleasant Grove
City v. Summum, 555 U.S. 460, 470, 129 S. Ct. 1125, 172 L.
Ed. 2d 853 (2009)). In a nonpublic or limited public forum,
government regulations need only be viewpoint neutral
and “reasonable given the purpose of the forum and all
the surrounding circumstances.” Id. (internal quotation
marks omitted).6
6. Ateba also contends that Sherrill offers a test for evaluating
the constitutionality of press pass restrictions. Pl.’ Cross-Mot. &
Opp’n at 5-7. Specifically, he points to the language in Sherrill
stating that “access [should] not be denied arbitrarily or for less
than compelling reasons.” Sherrill, 569 F.2d at 129; see id. at 130
(“[R]efusal must be based on a compelling governmental interest”).
The White House contests Ateba’s assertion that Sherrill dictates
any standard under the First Amendment. Defs.’ Reply & Opp’n at 9.
Since Sherrill preceded modern forum analysis, it is difficult
to ascertain the precise legal equivalent, but the term “compelling”
need not—and should not—be taken to suggest the application of
51a
Appendix B
The parties dispute whether the Press Area is a
nonpublic or limited public forum. The White House
contends the Press Area is a nonpublic forum because
access is “selective” and “limited to those who satisfy the
six criteria or are otherwise invited; the White House has
not generally opened its grounds to all comers or even to
all journalists.” Defs.’ Mot. at 8. Ateba responds that the
Press Area is a limited public forum because “[b]y long
practice, the White House created and has operated the
Press Area for the purpose of allowing journalists access
to the White House to communicate with the President
and his staff and to gather and disseminate the news.”
Pl.’s Cross-Mot. & Opp’n at 8. The parties’ positions on
this point are at odds with their arguments elsewhere in
the litigation. Where the White House contends elsewhere
that access is available to any journalist who can pass a
minimal Secret Service screening (i.e., eligible for a day
pass), here the White House suggests access is open only
to hard pass holders or invited guests. Ateba elsewhere
suggests that a journalist cannot effectively access the
Press Area without a hard pass. But here he contends the
a strict scrutiny standard (nor does Ateba ask the Court to apply
strict scrutiny). Rather, when the Sherrill court briefly addressed
the adequacy of the Secret Service’s substantive standard for
regulating access to the White House—”whether the applicant
presents a potential source of physical danger to the President and/
or his immediate family so serious as to justify his exclusion”—
the court acknowledged the standard was “circumspect” and
allowed the Secret Service to “exercise[e] expert judgment which
frequently must be subjective in nature.” Id. The latitude afforded
the Secret Service suggested a standard similar to reasonableness.
Accordingly, the Court finds review under the “reasonableness”
standard of forum analysis appropriate even under Sherrill.
52a
Appendix B
area is open to all journalists for reporting. Ultimately,
the Court need not wade through the parties’ internal
inconsistencies, since regardless of the type of forum
at issue—nonpublic or limited public—the standard of
review is the same: whether a challenged limitation is
reasonable and viewpoint neutral. See ACLU Found. v.
Washington Metro. Trans. Auth., 303 F. Supp. 3d 11, 17
(D.D.C. 2018).
In a nonpublic or limited public forum, “the State,
no less than a private owner of property, has power to
preserve the property under its control for the use to which
it is lawfully dedicated.” Perry Educ. Ass’n, 460 U.S. at
46. “In addition to time, place, and manner regulations,
the state may reserve the forum for its intended purposes,
communicative or otherwise.” Id. Thus, in such forums,
the government may draw distinctions based on “subject
matter and speaker identity so long as the distinctions
drawn are reasonable in light of the purpose served by the
forum and are viewpoint neutral.” Cornelius v. NAACP
Legal Def. & Educ. Fund, 473 U.S. 788, 806, 105 S. Ct.
3439, 87 L. Ed. 2d 567 (1985). “Although a speaker may be
excluded from a nonpublic forum if he wishes to address
a topic not encompassed within the purpose of the forum,
or if he is not a member of the class of speakers for whose
especial benefit the forum was created, the government
violates the First Amendment when it denies access to a
speaker solely to suppress the point of view he espouses
on an otherwise includible subject.” Id. (internal citations
omitted); see Christian Legal Soc’y Chapter of Univ. of
Cal., Hastings College of L. v. Martinez, 561 U.S. 661, 68082, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010) (discussing
parallel characteristics of a limited public forum).
53a
Appendix B
Reasonableness requires “something more than the
toothless ‘rational basis’ test used to review the typical
exercise of a state’s police power.” Price, 45 F.4th at
1072. However, a regulation can be reasonable without
being “the most reasonable or the only reasonable
limitation.” Cornelius, 473 U.S. at 808. A court must
assess limitations in light of the “purpose of the forum
and all the surrounding circumstances.” Id. at 809.
“The First Amendment does not demand unrestricted
access to a nonpublic forum merely because use of that
forum may be the most efficient means of delivering the
speaker’s message.” Id. “In contrast to a public forum, a
finding of strict incompatibility between the nature of the
speech or the identity of the speaker and the functioning
of the nonpublic forum is not mandated.” Id. at 808.
The reasonableness of a limitation can be established
“by evidence in the record or even by a commonsense
inference.” Price, 45 F.4th at 1072.
The parties dispute whether a reasonableness analysis
incorporates the doctrine of “unbridled discretion.” That
doctrine emerged in the context of prior restraints on
expressive activity, i.e., government rules prohibiting
individual expression without a license. See Forsyth
County v. Nationalist Movement, 505 U.S. 123, 13031, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992) (public
demonstration permitting); City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 753, 763-64, 108 S. Ct.
2138, 100 L. Ed. 2d 771 (1988) (newsstand licensing). The
Supreme Court has allowed facial challenges and even
invalidated challenged regulations when they provide
“overly broad licensing discretion” to the administrator.
City of Lakewood, 486 U.S. at 764 (quoting Freedman v.
54a
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State of Maryland, 380 U.S. 51, 56, 85 S. Ct. 734, 13 L.
Ed. 2d 649 (1965)). The Court has stated that “narrow,
objective, and definite standards [are needed] to guide
licensing authority.” Forsyth County, 505 U.S. at 131
(quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 150151, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969)). The doctrine
seeks to reduce “the risk of self-censorship” by speakers
hoping to obtain a necessary license, “and the risk that
the licensing official, not limited by express standards,
will use his power to suppress speech.” Southworth v.
Bd. of Regents of the Univ. of Wis. Sys., 307 F.3d 566, 576
(7th Cir. 2002) (discussing City of Lakewood, 486 U.S. at
757-58). As a secondary component of the doctrine, the
Supreme Court has sometimes required officials to abide
by certain “procedural safeguards,” including expeditious
judicial review and timelines for decision making. Thomas
v. Chi. Park Dist., 534 U.S. 316, 321-22, 122 S. Ct. 775, 151
L. Ed. 2d 783 (2002).
The White House contends that the unbridled
discretion doctrine does not apply to access to the Press
Area—a nonpublic or limited public forum—claiming that
the Supreme Court silently rejected the application of
the unbridled discretion doctrine to nonpublic forums by
refusing to embrace the plaintiff’s argument in Arkansas
Educational Television Commission v. Forbes, 523 U.S.
666, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998). See Defs.’
Mot. at 9-10. However, as Ateba points out, the Supreme
Court has extended at least some of the protections of the
unbridled discretion doctrine to nonpublic forums. See
Pl.’s Cross-Mot. & Opp’n at 13-14. In Minnesota Voters
Alliance v. Mansky, 585 U.S. 1, 138 S. Ct. 1876, 201 L.
Ed. 2d 201 (2018), the Court held that a Minnesota law
55a
Appendix B
banning “political” apparel in a nonpublic forum— the
polling place—was unreasonable because it contained no
“objective, workable standards.” Id. at 1891; see id. at 1888.
Although the state had a legitimate goal of creating “an
island of calm in which voters can peacefully contemplate
their choices,” id. at 1887 (internal quotation marks
omitted), it needed a standard that “articulate[d] some
sensible basis for distinguishing what may come in from
what must stay out,” id. at 1888.
The D.C. Circuit has since distilled “unbridled
discretion” and the Mansky rule to a “single challenge”:
whether [a regulation] is so broad as to provide
[the government] with no meaningful constraint
upon its exercise of the power to squelch. If
so, then it is not “reasonable” as that term is
used in Mansky, and not constitutional because
it provides [the government] with unbridled
discretion. Put the other way around, if [the
regulation] is capable of reasoned application,
as Mansky demands, then it does not confer
unbridled discretion upon [the government].
Am. Freedom Def. Initiative v. Washington Metro. Area
Transit Auth. (“AFDI”), 901 F.3d 356, 372, 438 U.S. App.
D.C. 172 (D.C. Cir. 2018); accord Zukerman v. U.S. Postal
Serv., 961 F.3d 431, 449, 447 U.S. App. D.C. 126 (D.C. Cir.
2020).
The White House urges the Court to read this
principle narrowly, arguing that the cases from which it
emerged concern “core First Amendment activity: the
56a
Appendix B
expression of ideas,” Defs.’ Reply & Opp’n at 6, not “the
distinct context of journalist access to what is, at most, a
nonpublic forum,” Defs.’ Mot. at 10. But such a limitation
is not warranted here. While the press may not challenge
every law involving discretion as censorship, the press
may challenge those laws “hav[ing] a close enough nexus
to expression, or to conduct commonly associated with
expression, to pose a real and substantial threat of the
identified censorship risks.” City of Lakewood, 486 U.S.
at 759.
White House press conferences involve a communicative
exchange between the government and news reporters.
As journalists ask questions, they raise issues important
to their readers, and foster public discussion of the
President’s administration. See Pl.’s Cross-Mot. &
Opp’n at 8. Other circuits have likewise recognized
that participating in press conferences has a “nexus” to
expression. See Evers, 994 F.3d at 611-12 (characterizing
“gathering information for news dissemination” as a
“form[] of expressive activity); TGP Communs., LLC,
2022 U.S. App. LEXIS 33641, 2022 WL 17484331, at *4
(describing news conference as a place for “speech on
limited topics”). Moreover, the purposes of the unbridled
discretion doctrine would be served by its application to
White House press access. See Pl.’s Cross-Mot. & Opp’n
at 14. A rule limiting press access without “objective,
workable standards” could encourage journalists to selfcensor to obtain access, and shelter decisionmakers from
accountability if they excluded reporters based on their
comments. Cf. Pen Am. Ctr. v. Trump, 448 F. Supp. 3d 309,
326-27 (S.D.N.Y. 2019) (concluding journalists adequately
57a
Appendix B
pleaded retaliation claim based on credential revocation
after speaking critically of former President Trump).
Accordingly, the Court will take account of the unbridled
discretion doctrine in reviewing the Hard Pass Policy for
reasonableness and viewpoint neutrality.
B. Reasonableness Review
As an initial matter, neither party argues that the
press credentialing requirement is itself viewpoint
discriminatory. Rather, Ateba argues that the requirement
of credentialing by the press galleries is “arbitrary and
unreasonable.”
The White House asserts that it “surely has a
legitimate interest in maintaining a degree of control over
media access to the White House complex,” Defs.’ Mot. at
11 (quoting Karem, 960 F.3d at 668), “given the purpose of
White House briefings and the limits that must exist, for
reasons of security and government efficiency, on access
to the White House,” id. The White House further argues
that “[i]mplicit in that interest is the ability . . . to limit
the press areas to those engaged in journalism.” Id. The
requirement of credentialing by an outside professional
organization, it contends, is a reasonable way to do so. Id.
Ateba concedes that limiting Press Area access
to those engaged in journalism is a “legitimate reason
for requiring press credentials.” Pl.’s Cross-Mot. &
Opp’n at 15. However, he argues that the requirement
of credentialing by the congressional press galleries is
unreasonable for two principal reasons: first, because the
58a
Appendix B
gallery credentialing requirement is “standardless and
susceptible to abuse,” id. at 10, and second, that requiring
a press gallery credential lacks a “rational nexus with the
government’s compelling reason for the restriction,” given
that “[j]ournalists covering the White House might not
want to cover Congress,” id. at 15.
The White House has long relied on credentialing
by the congressional press galleries as a prerequisite
to obtaining a press credential. See Sherrill, 569 F.2d
at 129 n.19 (noting the requirement in 1977); Karem,
960 F.3d at 660 (same in 2020); see id. (“Forty years on
[from Sherrill], today’s hard pass system is little changed
. . . .”). And the requirements for credentialing by the
press galleries are functionally the same as they were
around the time of Sherrill, including the requirement
that journalists be “bona fide . . . reporters of reputable
standing.” See Consumers Union of U.S., 515 F.2d at 134445 (quoting Rules Governing Periodical Press Galleries
in 1975). While not passing directly on the question, the
D.C. Circuit has never questioned the requirement of
press credentialing or the substance of the standards.
And as the White House points out, it is commonplace for
government entities to rely on professional credentialing
bodies as a means of determining access. See Defs.’ Mot.
at 11 (citing examples).
The standards that the press galleries apply are also
directly related to determining whether an applicant is
“engaged in journalism,” and not a lobbyist or investor
seeking to influence or derive benefit from access to
government officials. See Defs.’ Reply & Opp’n at 10
59a
Appendix B
(contending that the credentials are a “reasonable
heuristic for identifying bona fide journalists and ensuring
the White House press areas are properly limited to those
genuinely engaged in journalistic pursuits”). Indeed, the
rules of the Senate Daily Press Gallery—to which Ateba
has sought access—require that the applicant be employed
by a news organization “whose principal business is the
daily dissemination of original news and opinion of interest
to a broad segment of the public, and which has published
continuously for 18 months,” and which is “editorially
independent of any institution, foundation, or interest
group that lobbies the federal government.” Senate Daily
Press Gallery Rules. Further, “[t]he applicant must . . . not
be engaged in any lobbying or paid advocacy,” including
before Congress or any part of the federal government. Id.
Ateba’s narrow focus on the allegedly “standardless
and susceptible to abuse” requirement that an applicant
be a “bona fide resident correspondent[] of repute in their
profession,” Pl.’s Cross-Mot. & Opp’n at 10, removes the
important context of the credentialing rules. While the
Court does not undertake to offer a binding or limiting
definition of the term “of repute” as used in the press
credentialing rules, it is apparent that the term at least
draws meaning from the rules that follow. See Senate
Daily Press Gallery Rules. Unlike in McDaniel v.
Lombardi, 227 F. Supp. 3d 1032 (W.D. Mo. 2016), where
selection of execution witnesses was based on the naked
requirement that the individual be “reputable” in the
warden’s point of view, id. at 1034, 1038-39, the standard
here is followed by detailed regulations suggesting a more
definite meaning differentiating “[who] may come in from
60a
Appendix B
[who] must stay out.” Mansky, 138 S. Ct. at 1888. The term
“of repute” derives meaning from the central tenets of the
regulations—that the person is working as a journalist
for an established news organization and that the person
does not have any conflicts of interest.7
While not directly considering the additional principle
of unbridled discretion, the Seventh Circuit has concluded
that a very similar set of rules, “adapted from established
standards used by . . . the United States Congress”
and including the requirement that the journalist be “a
bona fide correspondent of repute in their profession,”
was a reasonable means for the Wisconsin governor
to determine access to press conferences. Evers, 994
F.3d at 606-07, 610-11. The court determined that the
criteria were “reasonably related to the viewpointneutral goal[s]” of “increasing the journalistic impact of
the Governor’s messages by including media that focus
primarily on news dissemination, have some longevity in
the business, and possess the ability to craft newsworthy
stories” and “increasing journalistic integrity by favoring
media that avoid real or perceived conflicts of interest or
entanglement with special interest groups, or those that
engage in advocacy or lobbying.” Id. at 610. This Court
agrees.
7. The additional rules governing elig ibility for press
credentials also tend to foreclose Ateba’s argument that “reputable”
is a “transparent classification among journalists” in favor of the
“institutional press.” Pl.’s Cross-Mot. & Opp’n at 16 (citing Citizens
United v. Fed. Election Comm’n, 558 U.S. 310, 352, 130 S. Ct. 876,
175 L. Ed. 2d 753 (2010).
61a
Appendix B
Importantly, reliance on a professional credentialing
body also tends to reduce the risk Ateba apparently fears
most—that the White House will discriminate against
journalists based on their relationship with the White
House. See, e.g., Pl.’s Cross-Mot. & Opp’n at 24 (alleging
the White House sought to exclude him from the Press
Area). Ateba stresses that the credentialing scheme is
“uniquely susceptible to abuse” because the press gallery
committees are “comprised of a group of journalists who
work for news outlets that have a strong institutional
foothold in the Washington, D.C. media ecosystem.” Pl.’s
Cross-Mot. & Opp’n at 12-13. But on Ateba’s own logic,
the gallery-review process seems less susceptible to abuse
than the apparent alternative of review by the (allegedly
biased) White House.
Under the Hard Pass Policy, the White House has
constrained its discretion to exclude speakers it disagrees
with (except through the Conduct Policy, which is not
challenged here). Instead of employing discretion in
determining which journalists are eligible to hold a
hard pass, the White House Press Office and the Secret
Service employ “six clear and definite standards that
are not amenable to discretionary judgments,” one of
which is whether the applicant holds a Supreme Court
or congressional press credential. Defs.’ Mot. at 15. This
procedure reduces the risk highlighted in the unbridled
discretion cases that a government official—here, the
White House—might allocate licenses (hard passes) based
on the views of certain speakers (reporters). See Mansky,
138 S. Ct. at 1891 (expressing concern that “[w]ithout
[objective, workable standards], an election judge’s own
62a
Appendix B
politics may shape his views on what counts as ‘political’”);
City of Lakewood, 486 U.S. at 763-64 (explaining that
in the absence of “standards governing the exercise of
discretion, a government official may decide who may
speak and who may not based upon the content of the
speech or the viewpoint of the speaker”).
Ateba’s point that a hard pass seeker may not want
to cover Congress or the Supreme Court is well-taken,
but it does not defeat the other reasonable features of
the credentialing gallery requirement. A regulation can
be reasonable without being “the most reasonable or
the only reasonable limitation.” Cornelius, 473 U.S. at
808. If the White House had its own press gallery but
required journalists to seek a credential from the gallery
of another branch of government, the reasonableness of
the requirement might be more significantly undermined.
But those are not the facts presented here. 8
8. The extent to which a journalist must actually cover Congress
to obtain a congressional press gallery credential is not clear. The
Senate Daily Press Gallery rules state that an applicant must
establish that he or she “requires on-site access to congressional
members and staff.” Senate Daily Press Gallery Rules. The House
Periodical Press Gallery rules, by contrast, only require that an
applicant “justify the need of Congressional press credentials.”
House Periodical Press Gallery Rules. From the White House’s long
history of requiring such credentials as a prerequisite to obtaining
a hard pass, the Court infers that such credentials can be obtained
even by journalists who focus their attention on covering the White
House. See Sherrill, 569 F.2d at 129 n.19 (noting that the White
House “stated that the applicant is required to have a pass to the
House and Senate galleries because this verifies the ‘professional
credentials’ of the applicant”).
63a
Appendix B
Finally, Ateba argues that the congressional press
credentialing requirement violates the “unbridled
discretion” doctrine because the press galleries are not
required to make decisions in any specific period of time.
Pl.’s Cross-Mot. & Opp’n at 12. His concern, as articulated
in some prior unbridled discretion cases, is that the
decisionmaker will “indefinitely suppress[] permissible
speech” without giving a reason. FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 227, 110 S. Ct. 596, 107 L. Ed. 2d
603 (1990) (Opinion of O’Connor, J.). The Court is wary
of applying the extraordinary procedural protections of
content-based prior restraints to the application here of
content-neutral criteria for press credentialing. As the
D.C. Circuit has acknowledged, “[m]ost circuits have held
content-neutral licensing schemes need not contain explicit
timeframes for processing permit applications.” Boardley
v. United States DOI, 615 F.3d 508, 518, 392 U.S. App.
D.C. 255 (D.C. Cir. 2010); see Griffin v. Sec’y of Veterans
Affs., 288 F.3d 1309, 1328 (Fed. Cir. 2002) (noting that
the procedural safeguards requirement generally “comes
into play” where “an explicit censorship scheme—which
by definition is not content-neutral—is under attack”).
Here, the press gallery regulations are content-neutral,
and Ateba does not face a prior restraint on the publication
of news articles. Moreover, he still has access to the Press
Area with his day pass during the credentialing process,
such that his speech there is not entirely curtailed while
he awaits a decision. Accordingly, the Court does not find
it appropriate to apply the strict procedural safeguards
of timely decision-making.
64a
Appendix B
In sum, the Court concludes that the Hard Pass Policy,
as it incorporates the requirements of the congressional
press galleries, is facially reasonable and viewpoint
neutral.
III. Viewpoint Discrimination Challenge to the Hard
Pass Policy
Ateba separately claims that the White House violated
the First Amendment by engaging in unconstitutional
viewpoint discrimination against him. His argument
is not that the Hard Pass Policy itself discriminates
on the basis of viewpoint—by, for example, providing
access only to reporters working for liberal-leaning news
organizations. Rather, his allegation is that “the White
House intentionally rejiggered its hard-pass criteria and
canceled existing passes because of Mr. Ateba’s protected
speech.” Pl.’s Reply in Supp. of Mot. for Summ. J. [ECF No.
29] (“Pl.’s Reply”) at 14. The White House seeks summary
judgment on this claim, while Ateba urges the Court to
deny summary judgment and afford him the opportunity
to obtain discovery. Because the Court concludes that
Ateba has failed even to state a plausible claim, Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d
868 (2009), discovery will be denied, and the Court will
dismiss the claim.9
9. After the Court denied Ateba’s motion for a preliminary
injunction, the Court ordered the parties to file expedited summary
judgment briefing. The White House has, thus, not filed a motion to
dismiss (apart from a footnote in its opposition to Ateba’s motion for
a preliminary injunction, requesting that the Court alternatively
dismiss the Complaint). See Defs.’ Opp’n to Pl.’s Mot. for Prelim. Inj.
65a
Appendix B
The government may violate the First Amendment
when it regulates speech based on “the specific motivating
ideology or the opinion or perspective of the speaker.”
Reed v. Town of Gilbert, 576 U.S. 155, 168, 135 S. Ct. 2218,
192 L. Ed. 2d 236 (2015) (quoting Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S. Ct.
2510, 132 L. Ed. 2d 700 (1995)). The government may not
“den[y] access to a speaker solely to suppress the point of
view he espouses.” Lamb’s Chapel v. Ctr. Moriches Union
Free Sch. Dist., 508 U.S. 384, 393, 113 S. Ct. 2141, 124 L.
Ed. 2d 352 (1993) (quoting Cornelius, 473 U.S. at 806).
Viewpoint discrimination occurs when the government
“target[s] ‘a specific premise, a perspective, a standpoint
from which a variety of subjects may be discussed and
considered.’” People for the Ethical Treatment of Animals
v. Tabak, Civ. A. No. 21-2380 (BAH), 2023 U.S. Dist.
LEXIS 61363, 2023 WL 2809867, at *13 (D.D.C. Mar. 31,
2023) (quoting Rosenberger, 515 U.S. at 831).
The thrust of the Complaint is that the White House
“generally ignore[d]” Ateba’s written and oral questions
and refused him access to President Biden. Compl.
¶¶ 42-44. Frustrated, he took to “assert[ing] himself in
the briefing room, speaking over other reporters and
the White House Press Secretary in an attempt to make
his concerns known.” Id. ¶ 5. As examples, he highlights
one “notable incident” in which he interrupted the Press
Secretary’s introduction of the “Ted Lasso” cast by
[ECF No. 17] at 6 n.2. However, at oral argument on the summary
judgment motions, the parties agreed that the issue of the viewpoint
discrimination claim’s plausibility had been sufficiently briefed for
decision.
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Appendix B
“questioning why he has not received any responses to
his written inquiries or been given the opportunity to
ask a question during the press briefing,” id. ¶ 49, and “a
number of other occasions” since December 2021 in which
he “asserted himself during briefings . . . seeking answers
to his questions,” id. ¶ 52. He claims that the “significant
media coverage focusing on [his] conduct in the briefing
room prompted the Biden White House to act” by adopting
the Hard Pass Policy that resulted in deactivation of his
pass. Id. ¶¶ 54, 62.10
Assuming the truth of Ateba’s allegations, he has
alleged discrimination based on his conduct in the briefing
room, not any view he holds or shares in his reporting. His
claim is that the White House sought to exclude (or limit
his access to) the Press Area to prevent his disruptive
behavior. But Ateba’s conduct is not itself a viewpoint.
10. While Ateba’s viewpoint discrimination claim reads more
like a First Amendment retaliation claim, he has not briefed it as
such. In the D.C. Circuit, “[t]o state a claim for First Amendment
retaliation, a plaintiff must allege that: ‘(1) he or she engaged in
conduct protected under the First Amendment; (2) the defendant
took some retaliatory action sufficient to deter a person of ordinary
firmness in plaintiff’s position from speaking again; and (3) a causal
link between the exercise of a constitutional right and the adverse
action taken against him or her.’” Black Lives Matter D.C. v. Trump,
544 F. Supp. 3d 15, 46 (D.D.C. 2021) (quoting Aref v. Lynch, 833 F.3d
242, 258, 425 U.S. App. D.C. 274 (D.C. Cir. 2016)). The Court does not
pass judgment on whether revocation of a hard pass is sufficiently
adverse action as to “deter a person of ordinary firmness in plaintiff’s
position from speaking again,” and, thus, whether Ateba’s claim
could survive if briefed within the retaliation framework. See Pen
Am. Ctr., 448 F. Supp. 3d at 326-27.
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Appendix B
See Oberwetter v. Hilliard, 639 F.3d 545, 553, 395 U.S.
App. D.C. 52 (D.C. Cir. 2011) (regulations that “prohibit
disruptive speech regardless of its message” “plainly do
not discriminate on the basis of viewpoint”); Eichenlaub
v. Township of Indiana, 385 F.3d 274, 281 (3d Cir. 2004)
(concluding that “a motive . . . to prevent [] badgering,
constant interruptions, and disregard for the rules of
decorum” is “sustainable and content-neutral.”); see
also Cornelius, 473 U.S. at 811 (“The First Amendment
does not forbid a viewpoint-neutral exclusion of speakers
who would disrupt a nonpublic forum and hinder its
effectiveness for its intended purpose.”).
In his summary judgment reply brief (his fourth
substantive brief in this case), Ateba belatedly pivots and
suggests that the White House disliked “his focus on U.S.
relations with African nations, which Mr. Ateba seeks to
cover at the White House.” Pl.’s Reply at 14 (citing Compl.
¶¶ 3-4, 44). “[I]t is a well-settled prudential doctrine
that courts generally will not entertain new arguments
first raised in a reply brief.” Benton v. Laborers’ Joint
Training Fund, 121 F. Supp. 3d 41, 51 (D.D.C. 2015)
(internal quotation marks omitted). Doing so is not only
unfair to the defendant, but also risks “an improvident
or ill-advised opinion on the legal issues tendered.” Id.
(quoting McBride v. Merrell Dow & Pharm., 800 F.2d
1208, 1211, 255 U.S. App. D.C. 183 (D.C. Cir. 1986)). But
even if the Court were to consider the argument, the
Complaint alleges no facts supporting an inference that
the White House adopted the Hard Pass Policy to silence
discussion of U.S.-African relations or because of Ateba’s
68a
Appendix B
focus on this topic.11 Ateba does not claim, for example,
that the White House has generally sought to shut down
discussion of that topic, or that others who cover that topic
similarly lost their press passes. “That [the White House]
put in place a much broader ban . . . suggests it was not
discriminating against the views of [Ateba].” AFDI, 901
F.3d at 367.
While the facts alleged in the Complaint support an
inference that the White House Press Office disfavored
Ateba even before he began disrupting press conferences,
those facts do not support the further inference that his
viewpoint, or even the content of his speech, has anything
to do with this disfavor. He alleges that over five years as
a correspondent, he has “rarely received any response”
to his questions and has been permitted to attend a press
conference with President Biden just once. Compl. ¶¶ 4243; see id. ¶ 3 (alleging he has had “almost no opportunity
to meaningfully communicate with the White House”); id.
¶¶ 46-53 (suggesting that Ateba’s outbursts were treated
differently from his colleagues’).
It is true that the Supreme Court has at times
suggested that speaker-based discrimination suffices to
11. In the Complaint, Ateba briefly asserts a claim for contentbased discrimination, the general category into which viewpoint
discrimination falls. Compl. ¶ 91. However, he has failed to elaborate
on this theory in any of his briefing on the preliminary injunction or
summary judgment. The Court, therefore, considers the argument
forfeited. Al-Tamimi v. Adelson, 916 F.3d 1, 6, 439 U.S. App. D.C.
357 (D.C. Cir. 2019).
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Appendix B
raise a speech discrimination claim.12 See Citizens United,
558 U.S. at 340-41 (holding unconstitutional campaign
finance regulations based on the corporate identity of the
speaker); see also Surita v. Hyde, 665 F.3d 860, 870-71
(7th Cir. 2011) (holding unconstitutional mayor’s exclusion
of one particular speaker from participating in a public
meeting). However, before and after Citizens United,
the Supreme Court has primarily followed the principle
that speaker-based discrimination is prohibited when
and because it accompanies content discrimination. See
Sorrell, 564 U.S. at 565; Asaf Weiner, A Speaker-Based
Approach to Speech Moderation and First Amendment
Analysis, 31 Stan. L. & Pol’y Rev. 187, 214 (2020). Thus,
as the Court summarized in Reed, “[c]haracterizing a
distinction as speaker based is only the beginning—not
the end—of the inquiry.” 576 U.S. at 170. Although the
Court recognized there that “[s]peech restrictions based
on the identity of the speaker are all too often simply a
means to control content,” it proceeded to suggest that
speaker-based concerns arise “when the legislature’s
speaker preference reflects a content preference.” Id.
(alteration in original) (first quoting Citizens United,
558 U.S. at 340; then quoting Turner Broad. Sys., Inc. v.
F.C.C., 512 U.S. 622, 658, 114 S. Ct. 2445, 129 L. Ed. 2d
497 (1994)). Ateba’s Complaint does not raise any plausible
connection between the viewpoint of his speech (or even its
content) and the White House’s alleged animosity toward
him. Thus, the Court concludes that the Complaint lacks
“sufficient factual matter, accepted as true, to ‘state a
12. Ateba primarily raised this argument in his preliminary
injunction briefing. See Pl.’s Reply in Supp. of Mot. for Prelim. Inj.
[ECF No. 18] at 13.
70a
Appendix B
claim to relief that is plausible on its face.’” Ashcroft, 556
U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). The
factual allegations, if proved, would not “allow the court to
draw the reasonable inference,” Banneker Ventures, LLC
v. Graham, 798 F.3d 1119, 1129, 418 U.S. App. D.C. 398
(D.C. Cir. 2015) (cleaned up), that the White House adopted
the Hard Pass Policy with the “inten[t] sub silentio to
suppress [Ateba’s] views.” AFDI, 901 F.3d at 365. The
viewpoint discrimination claim thus fails.
IV. APA Challenge to Cancellation of Ateba’s Hard
Pass
Ateba’s final claim is that the Secret Service “violated
the [APA] by cancelling [his] hard pass.” Pl.’s CrossMot. & Opp’n at 19. He asserts that the cancellation was
“arbitrary and capricious” because the Secret Service
never gave him a reason for canceling the hard passes ex
ante, and the ex post explanation (offered in litigation) that
too many passes were in circulation, including many that
were no longer actively used, “makes no sense applied to
Mr. Ateba, who did actively use his hard pass.” Id. The
White House and Secret Service have not in litigation
offered any rationale (beyond the Hard Pass Policy)
for cancelling Ateba’s hard pass, but rather argue that
the Secret Service’s cancellation of Ateba’s hard pass
is immune from APA review because it was done at the
direction of the White House Press Office. Defs.’ Mot. at
21-25.13
13. The White House also argues that the Secret Service’s
“purely mechanical action of issuing a credential” is not “final agency
71a
Appendix B
The President’s actions are not subject to review
under the APA. Franklin v. Massachusetts, 505 U.S. 788,
800-01, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992). This
preclusion of review also extends to certain executive
offices carrying out the President’s directives. See, e.g.,
Soucie v. David, 448 F.2d 1067, 1073-75, 145 U.S. App.
D.C. 144 (D.C. Cir. 1971); cf. Wenyi Wang v. Exec. Office
of the President, Civ. A. No. 07-0891 (JR), 2008 U.S. Dist.
LEXIS 3662, 2008 WL 180189, at *1 (D.D.C. Jan. 18, 2008)
(holding that the White House Press Office is not “an
‘agency’ within the meaning of FOIA” because it “lacks . . .
regulatory authority or government function” independent
from the office of the President). Ateba does not challenge
the immunity of the White House Press Office from APA
review. See Pl.’s Reply at 11. Accordingly, he appears to
concede that he cannot challenge the Hard Pass Policy—a
policy devised by the White House— under the APA. See
id. He focuses instead on the Secret Service’s cancellation
of his hard pass. See Pl.’s Reply at 11.
Defendants do not dispute that actions of the Secret
Service, a component of the Department of Homeland
Security, may be reviewable under the APA. See Defs.’
Mot. at 22; see also Oryszak v. Sullivan, 576 F.3d 522, 524,
388 U.S. App. D.C. 64 (D.C. Cir. 2009) (affirming dismissal
of claim without questioning the general applicability of
the APA to the actions of the Secret Service); Citizens for
Resp. & Ethics in Washington v. U.S. Dep’t of Homeland
Sec., 527 F. Supp. 2d 101, 102, 111- 112 (D.D.C. 2007)
(similar). However, the White House and Secret Service
action” subject to review under the APA. Defs.’ Mot. at 24-25. The
Court will assume without deciding that cancellation of Ateba’s
credential was final agency action.
72a
Appendix B
argue that APA immunity extends to agency actions
when taken to carry out “discretionary authority vested
in the President.” Detroit Int’l Bridge Co. v. Gov’t of
Canada, 189 F. Supp. 3d 85, 104 (D.D.C. 2016). Defendants
cite a line of district court cases holding unreviewable
certain agency actions taken within the authority of the
President. See Defs.’ Mot. at 23. In Detroit International
Bridge, for example, the court concluded that when the
President delegated his discretionary bridge permitting
authority to the State Department, the decision remained
unreviewable as if it were made by the President. Id. at
100-02.
At eba cla i ms that these cases a re factua l ly
distinguishable, as they involve special intrusions into
presidential power inapplicable here. See Pl.’s Reply at 1112. He asserts the defendants’ position would “prove[] too
much” since “[t]he whole of the executive power rests with
the President,” id. at 11, and he directs the Court instead
to various cases in which courts have reviewed agency
decisions that implement a presidential directive, see Pl.’s
Cross-Mot. & Opp’n at 19-20, 20 n.8; see also Hawaii v.
Trump, 878 F.3d 662, 680-81 (9th Cir. 2017) (per curiam)
(reviewing APA suit against “the President . . . [and] the
entities charged with carrying out his instructions” to
exclude certain foreign nationals from entering the United
States), rev’d and remanded on other grounds, 138 S.
Ct. 2392, 201 L. Ed. 2d 775 (2018); O.A. v. Trump, 404 F.
Supp. 3d 109, 147 (D.D.C. 2019) (undertaking APA review
of an agency rule implemented pursuant to a presidential
proclamation pertaining to asylum seekers).
73a
Appendix B
The White House and Secret Service reply in turn
that Ateba’s cited cases are “inapposite” because they
hold
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