UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SIMON ATEBA, Plaintiff, v. Civil Action No. 23-2321 (JDB)
KARINE JEAN-PIERRE, in her official capacity as Press Secretary to the President of the United States, et al., Defendants.
MEMORANDUM OPINION AND ORDER
The D.C. Circuit has long recognized that journalists’ access to the White House may
implicate First Amendment interests. See Karem v. Trump, 960 F.3d 656, 665 (D.C. Cir. 2020);
Sherrill v. Knight, 569 F.2d 124, 129–30 (D.C. Cir. 1977). Simon Ateba, a journalist covering the
White House for Today News Africa, an online publication focusing on American politics and the
relationship between the United States and African countries, challenges a recent change in White
House policy related to access for journalists. The new policy alters the requirements for obtaining
a “hard pass”—a special press credential that allows a journalist to enter the White House press
areas “on-demand.” Karem, 960 F.3d at 106. Ateba, who previously held a hard pass, lost his
credential under the new rule.
On August 10, 2023, Ateba sued Karine Jean-Pierre, the White House Press Secretary;
Kimberly Cheatle, the Director of the Secret Service; and the Secret Service (collectively, the
“White House”), alleging that the new policy violates his First Amendment rights and runs afoul
of the Administrative Procedure Act (“APA”). 1 Before the Court is Ateba’s motion for a
1 Ateba alleges that all defendants violated his First Amendment rights, but only the Secret Service violated his rights under the APA. The Court will differentiate among defendants when it reaches the merits of this dispute at a later stage in the litigation.
1 preliminary injunction reinstating his hard pass and prohibiting the White House from enforcing
the new policy. The Court will deny the motion because Ateba has not shown he is likely to suffer
irreparable harm during the pendency of this litigation. The Court will, however, order expedited
summary judgment briefing so that the merits of Ateba’s challenge can be swiftly adjudicated.
Background
For decades, the White House has offered press credentials to journalists who cover the
President and his administration. See Sherrill, 569 F.2d at 126. These credentials allow journalists
to access the press areas of the White House complex, including the James S. Brady Press Briefing
Room, where they can attend press conferences, interview White House officials, and report on
the day-to-day of the administration. See Pl.’s Verified Compl. [ECF No. 1] (“Compl.”) ¶¶ 22,
26–27. The White House press corps includes reporters from a wide range of outlets, who rely on
the “essential access point” of the briefing room to do their jobs. Id. ¶¶ 22–23.
Given the “strict security requirements” necessary to protect the President, access to the
White House is “tightly controlled.” Defs.’ Opp’n to Pl.’s Mot. for Prelim. Inj. [ECF No. 17]
(“Opp’n”) at 2; see Sherrill, 569 F.2d at 130 (recognizing a “compelling, even . . . overwhelming
interest” in the President’s safety (internal quotation marks omitted)). Today, the White House
offers two principal forms of access: First, a reporter can obtain a “hard pass,” a credential that
allows him to come and go freely from the press areas of the White House. Decl. of Nathan
Fleischer [ECF No. 17-1] (“Fleischer Decl.”) ¶ 6. Second, a reporter may get a “day pass,” a daily
credential issued upon application to the Secret Service. Id. ¶ 7. As discussed further below, day
pass and hard pass holders can access the same parts of the White House at the same times. Id.
¶¶ 6–7. However, day pass holders must undergo additional initial security screening and be
escorted from the White House gate to the press areas. Id. ¶¶ 7–9.
2 Ateba is the White House Correspondent for Today News Africa, an “online publication
that focuses on relations between the United States and African nations.” Compl. ¶ 18. A longtime
journalist, Ateba began covering the White House in 2018. Id. ¶¶ 38–39. For the first three years,
he entered the White House with a day pass. Id. ¶ 39. From February 2021 through July 2023, he
held a hard pass. Id. ¶¶ 40, 62. During his time as correspondent, Ateba has become increasingly
frustrated by the reception he has received from the White House Press Office. Ateba asserts that
he “has rarely received any response—or even acknowledgment—of his questions from the White
House” and has been denied access to press conferences held by President Biden (even before he
lost the hard pass). Id. ¶ 42; see id. ¶ 43. As a result, faced with this situation, Ateba claims he
“resorted to one of the only options available to him: speaking up during press briefings.” Id. ¶ 45.
Ateba is known to “shout[] his questions to the White House Press Secretary . . . during briefings
. . . [and] speak over his fellow journalists.” Id. ¶ 47; see id. ¶¶ 47–52. In one notable incident,
Ateba interrupted a press conference featuring the cast members of the comedy TV series “Ted
Lasso,” who were invited to speak on mental health, to ask why he was not allowed to ask
questions. Id. ¶ 49. Ateba’s outbursts have not ingratiated him with the White House Press Office
or his fellow correspondents. Id. ¶¶ 48–53. His conduct has been the subject of considerable news
coverage, and he received a letter from the White House warning him that his hard pass could be
suspended or revoked if he continued disrupting press briefings. Id. ¶¶ 52, 58.
On May 5, 2023, the White House announced a new set of criteria for obtaining a hard
pass: (1) full-time employment with a news organization; (2) a D.C.-area address; (3) access of
the White House within the last six months for work; (4) an assignment to regularly cover the
White House; (5) accreditation by a press gallery of the Supreme Court, the U.S. Senate, or the
U.S. House of Representatives; and (6) willingness to submit to a Secret Service background
3 check. Compl. ¶ 55; see Ex. A [ECF No. 1-1]. Ateba asserts that these new criteria were “targeted”
at keeping him out of the White House. Compl. ¶ 57; see id. ¶ 54. Specifically, Ateba claims that
“excluding [him] was the goal of the specific revisions” requiring press gallery accreditation, since
“the White House knew he would not qualify for a hard pass under the new criteria.” Id. ¶ 60; see
id. ¶ 61. He asserts that Supreme Court press passes are difficult to come by, and he argues that
the criteria for obtaining a congressional press credential are subjective and prone to abuse,
particularly as to journalists who, like him, have spoken out of turn. Id. ¶¶ 67–74. Ateba fears he
will not be able to obtain a credential from the committees of journalists responsible for
congressional press credentialing because, he contends, they are “insular and hostile to
‘outsiders,’” id. ¶ 74, and use an amorphous criterion of being a “bona fide correspondent[] of
repute in the[] profession” to determine eligibility, id. ¶ 72; see also Mem. of Law in Supp. of
Prelim. Inj. [ECF No. 2] (“Mot.”) at 19–20. The White House, for its part, notes that this same
requirement of a congressional press gallery credential has been employed by many
administrations, including those of Presidents Obama and Trump. See Opp’n at 3; Sherrill, 569
F.2d at 126 & n.3, 129.
Since the White House announced the new policy, Ateba has been unable to secure either
accreditation. He was denied the requisite credentials by the Supreme Court and continues to await
an answer regarding congressional press credentialing. Compl. ¶¶ 76–77.
Ateba’s hard pass expired when the new policy became effective on July 31, 2023. Compl.
¶¶ 54, 62. On August 4, 2023, he requested an extension of his prior hard pass, which was denied.
Email from Allyson N. Bayless to Today News Africa (Aug. 6, 2023) [ECF No. 17-2]. He has not
applied for a new hard pass, he says, because it would be futile without the required congressional
or Supreme Court credential. Decl. of Simon Ateba [ECF No. 18-1] (“Ateba Decl.”) ¶ 6. Since
4 the expiration of his hard pass, Ateba has sought a day pass on only one occasion. See id. ¶¶ 12,
15–16; Defs.’ Surreply in Opp’n to Pl.’s Mot. for Prelim. Inj. [ECF No. 20] (“Surreply”) at 1–2.
His request was granted but he did not enter the White House. Surreply at 2. Ateba claims he was
confused about whether the request was granted. See Ateba Decl. ¶ 17.
On August 10, 2023, Ateba simultaneously filed a complaint and a motion for a preliminary
injunction, asking the Court to enjoin enforcement of the new hard pass policy and reinstate his
hard pass for the duration of the litigation. He claims the White House Press Office engaged in
viewpoint discrimination by adopting a hard pass policy intended to exclude him and
impermissibly vested “unbridled discretion” in the congressional press gallery committees.
Compl. ¶¶ 83–95. He further asserts that the Secret Service’s failure to provide a reasoned
explanation for terminating his hard pass by allowing it to expire violates the APA. Id. ¶¶ 96–103.
The preliminary injunction motion is fully briefed and ripe for resolution.
Legal Standard
“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.’” Guedes v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019) (per curiam) (quoting Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). The moving party bears the burden of persuasion
to establish that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in
the absence of preliminary relief; (3) the balance of equities tip in its favor; and (4) an injunction
is in the public interest. Id. A failure to show irreparable harm is “grounds for refusing to issue a
preliminary injunction, even if the other three factors entering the calculus merit such relief.”
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
5 Analysis
Because preliminary injunctive relief is never warranted in the absence of irreparable harm,
the Court may begin there. See, e.g., Chaplaincy, 454 F.3d at 297; Nat’l Treasury Emps. Union v.
United States (“NTEU”), 927 F.2d 1253, 1254 (D.C. Cir. 1991) (Thomas, J.). For purposes of this
analysis, the Court will “assume[], without deciding, that [Ateba] has demonstrated a likelihood
that the [White House’s] conduct violates the law.” Chaplaincy, 454 F.3d at 303. To satisfy this
prong, Ateba must demonstrate harm that is “certain and great,” “actual and not theoretical,”
“imminent” and “beyond remediation.” League of Women Voters of United States v. Newby, 838
F.3d 1, 7–8 (D.C. Cir. 2016) (quoting Chaplaincy, 454 F.3d at 297). In this Circuit, “a prospective
violation of a constitutional right constitutes irreparable injury,” Gordon v. Holder, 721 F.3d 638,
653 (D.C. Cir. 2013), but only if the violation is “ongoing or ‘imminent.’” Singh v. Berger, 56
F.4th 88, 109 (D.C. Cir. 2022) (quoting Chaplaincy, 454 F.3d at 297) (cleaned up).
I. Alleged Deprivation of White House Access
Ateba argues that he faces irreparable harm because, without a hard pass, “he has extremely
limited access to the White House press facilities . . . which substantially limits his ability to cover
the White House for [Today News Africa].” Mot. at 23. While the parties are at odds over the
equivalence of a day pass, certain facts are not in dispute. On a weekly basis, journalists can
request links to a form that would allow them to register for visitor passes to enter the White House
each day. Ateba Decl. ¶ 8; Fleischer Decl. ¶ 8. After a journalist submits this form, which includes
biographical data, the Secret Service conducts a background check and authorizes access to the
White House press areas. Fleischer Decl. ¶ 8; Mot. at 2. When a journalist visits the White House
on a day pass, he must undergo additional security screening and then be escorted to the press
areas. Compl. ¶ 39; Fleischer Decl. ¶¶ 7, 9. But once inside, the day pass allows a journalist to
enter the White House grounds during the same times as a hard pass holder and attend the same
6 press events. Fleischer Decl. ¶ 7; see Compl. ¶ 26. Ateba is eligible to apply for a day pass. See
Suppl. Decl. of Nathan Fleischer [ECF No. 20-1] (“Fleischer Suppl. Decl.”) ¶ 3; Ateba Decl. ¶ 15.
For three years before he obtained a hard pass, Ateba used day passes to enter the White House.
Compl. ¶ 39; Surreply at 2.
Ateba disputes the convenience and reliability of this day pass system. He contends that it
limits his ability to cover breaking news because he needs to request day pass links the Thursday
prior and submit a form by 5:00 p.m. the day before he intends to access the White House. Ateba
Decl. ¶¶ 8–9. He claims that it can be confusing whether a request for a day pass was in fact
granted. Id. ¶¶ 14–17. And he asserts that journalists arriving on a day pass must wait “as much
as a half hour” for an escort, which “mak[es] the process quite cumbersome.” Id. ¶ 11. Without
a hard pass, Ateba says he is “unable to provide the quality of coverage of the White House that . . .
[his] readers deserve.” Id. ¶ 5; see Compl. ¶ 27 (noting that the White House Correspondents’
Association has said a hard pass is necessary for a correspondent to “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”
(quoting Br. of Amicus Curiae The White House Correspondents’ Association in Supp. of
Appellee Seeking Affirmance at 3, Karem, 960 F.3d 656 (No. 19-5255)).
The White House, by contrast, characterizes the security clearance process as simple,
requiring only a short form with the journalist’s biographical data. Fleischer Decl. ¶ 8. Security
screening takes “[o]n average . . . one minute longer” for the journalist to clear security, although
they “might need to wait for [an] escort . . . to the Press Area.” Id. ¶ 9. The White House submitted
further evidence suggesting that a journalist can apply for a day pass shortly before arrival,
irrespective of the policy Ateba describes requiring submission by 5:00 p.m. the day before. See
7 Ateba Decl. ¶ 8. For example, on the one occasion Ateba sought a day pass since losing his hard
pass, he requested the day pass application links at 9:40 p.m. on Sunday, August 27, 2023, and
received them the next day at 9:07 a.m. Ex. 4 to Surreply [ECF No. 20-2]. He filled out the form
by 11:00 a.m., and his same-day request to attend a press briefing was granted. Fleischer Suppl.
Decl. ¶¶ 2–3.
Ateba contends that he is irreparably harmed by the loss of his hard pass, which requires
him to use the day pass system when he plans to enter the White House. He claims that the D.C.
Circuit’s holding in Karem, 960 F.3d 656, that a reporter suffered irreparable harm when his hard
pass was merely suspended, supports his position. Mot. at 23. But in Karem, it was the fact of the
suspension, without requisite Fifth Amendment due process, that squarely supported a finding of
irreparable harm. 960 F.3d at 667–68 (citing Sherrill, 568 F.2d at 131). And, moreover, it appears
that Karem (the reporter) was actually unable to access the White House. See id. at 665
(characterizing Karem’s punishment as a “month’s exile”). Ateba does not allege that he was
denied due process, 2 and he can still access the White House with a day pass.
Rather, Ateba asserts that the deprivation of a hard pass causes irreparable harm to his First
Amendment rights. The D.C. Circuit has recognized that “White House press facilities having
been made publicly available as a source of information for [newspersons], the protection afforded
newsgathering under the [F]irst [A]mendment 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
2 As argued in the White House’s opposition, Ateba likely cannot demonstrate similar harm here since
the White House issued this policy months in advance and gave Mr. Ateba an opportunity to apply for renewal of his hard pass—something he has not done—while simultaneously setting forth the standards and procedures that would govern both issuance of a hard pass in the first instance and revocation of a hard pass once granted.
Opp’n at 24. Ateba’s passing allegation of a Fifth Amendment violation in his reply brief will not be considered. See Pl.’s Reply in Supp. of Mot. for Prelim. Inj. [ECF No. 18] (“Reply”) at 14.
8 (footnote and citations omitted). Sherrill may imply that a journalist suffers a First Amendment
harm when he or she is arbitrarily denied access to the White House press areas. But cf. Zemel v.
Rusk, 381 U.S. 1, 17 (1965) (noting there is no general First Amendment right to enter the White
House). Even accepting this premise, Ateba has not demonstrated that he has suffered harm since
he still has access to White House press areas with a day pass. See Opp’n at 24. The Court
recognizes that Ateba is inconvenienced by needing to fill out the form and wait on a press escort.
Further, it is possible he would miss an event occurring on short notice because he had not
requested credentials in advance. But this latter result may be avoided if Ateba applies for a week’s
worth of day passes in advance, even if he is unsure whether he will use them. Ultimately, he
remains able to enter the White House using the day pass system, which, on the evidence before
the Court, appears to be an acceptable alternative for the duration of the litigation.
Ateba points to a recent Ninth Circuit order in support of his position that being required
to use a day pass instead of a hard pass constitutes irreparable harm. A panel of that court recently
concluded that a journalist was irreparably injured when he was excluded from Maricopa County
press briefings because “constitutional injury is not ‘rendered de minimis or otherwise mitigated
by requiring [him] to avail [himself] of a less desirable, even if somewhat effective alternative.’”
Reply at 19 (quoting TGP Commc’ns, LLC v. Sellers, No. 22-16826, 2022 WL 17484331, at *6
(9th Cir. Dec. 5, 2022)). But that journalist, unlike Ateba, was denied access to the briefings and
left to watch a livestream. See TGP Commc’ns, 2022 WL 17484331, at *6 (describing “the
County’s exclusion of [the journalist] from its limited forum”); cf. Consumer’s Union of U.S., Inc.
v. Periodical Correspondents’ Ass’n, 365 F. Supp. 18, 26 (D.D.C. 1973) (condemning arbitrary
“[e]xclusion from the [congressional] press galleries”), rev’d on other grounds, 515 F.2d 1341
(D.C. Cir. 1975). On the evidence before the Court, Ateba has not made a “clear showing,” Winter,
9 555 U.S. at 22, that denial of access to the White House is “likely to occur,” Henke v. Dep’t of
Interior, 842 F. Supp. 2d 54, 59 (D.D.C. 2012), such that he would be irreparably harmed during
the litigation.
II. Other Alleged Harms
Ateba further argues that “adoption of an unconstitutional hard pass eligibility policy that
infringes on the freedom of the press is itself irreparable harm that justifies a preliminary
injunction.” Mot. at 23. It is often said that when a party seeks a preliminary injunction to prevent
the deprivation of a First Amendment right, the only question for the Court is whether “the
deprivation is shown to be likely.” Archdiocese of Wash. v. Wash. Metro. Area Transit Auth.,
897 F.3d 314, 334 (D.C. Cir. 2018). Because a “prospective violation of a constitutional right
constitutes irreparable injury,” Gordon, 721 F.3d at 653, even if it lasts only “minimal periods of
time,” Elrod v. Burns, 427 U.S. 347, 373 (1976), a preliminary injunction should issue if the
violation is shown to be likely to occur and the plaintiff is likely to succeed on the merits,
Archdiocese of Wash., 897 F.3d at 334.
However, “[t]hat abstract principle must be applied to the relevant factual setting.” Getty
Images News Servs. Corp. v. Dep’t of Def., 193 F. Supp. 2d 112, 123 (D.D.C. 2002). It is not
enough to “merely allege a violation of freedom of expression in order to satisfy the irreparable
injury prong.” Chaplaincy, 454 F.3d at 301; see also Sanders v. McClellan, 463 F.2d 894, 903
(D.C. Cir. 1972) (weighing “indirect and incidental chill” of government action that did not result
in “direct suppression of speech or press”). A plaintiff “must show that their ‘First Amendment
interests are either threatened or in fact being impaired at the time relief is sought.’” Chaplaincy,
454 F.3d at 301 (quoting NTEU, 927 F.3d at 1254–55). Where speech is not directly curtailed, a
10 plaintiff must “demonstrate that the allegedly impermissible government action would chill
allowable individual conduct.” Id. at 301.
The D.C. Circuit’s opinion in NTEU is instructive. See Chaplaincy, 454 F.3d at 301.
NTEU involved a suit by government employees to enjoin an ethics law prohibiting them from
receiving compensation for delivering speeches or writing articles. 927 F.2d at 1253–54. The
D.C. Circuit affirmed the denial of a preliminary injunction since the employees failed to show
they would “cease speaking or writing before the district court resolves their constitutional
challenges.” Id. at 1255. Since the employees could still get reimbursed for their expenses, it was
unconvincing that they were unable to afford to continue engaging in First Amendment activities.
Id. And any lack of financial incentive to “continue writing or speaking” was a “foreseeable long-
term effect[]” that “did not entitle the [plaintiffs] to preliminary, injunctive relief.” Id.
Because the White House policy does not limit what Ateba can publish, his bare assertion
that the policy violates the freedom of the press does not suffice to establish a likelihood of
irreparable harm. And Ateba has not demonstrated the hard pass policy is likely to chill his
newsgathering activities to the detriment of his readers. Ateba has indicated that, despite the
difficulties he faces without a hard pass, he “will continue to cover the White House” and remains
“determined to continue providing quality coverage for his readers.” Compl. ¶ 81. The evidence
suggests he will be able to do so: “For his first three years covering the White House, Mr. Ateba
obtained a temporary daily press pass . . . .” Id. ¶ 39; see Opp’n at 25. And since his hard pass
expired, he has only tried to seek entry to the White House one time. Ateba asserts that on the
prior two occasions the White House held a press briefing in August, he was not aware in time to
request a day pass. Ateba Decl. ¶ 13. It is not clear to the Court whether this was a failure of
Ateba’s diligence or the White House Press Office’s advance planning. In any event, the fact that
11 the White House was willing to clear an 11:00 a.m. request for access, see Fleischer Suppl. Decl.
¶¶ 2–3, suggests Ateba could cover most if not all press briefings, allowing him to gather the news
and deliver it effectively to his readers. See Getty Images, 193 F. Supp. 2d at 123 (finding no
irreparable harm when it was unclear how the challenged regulation would affect journalists’ right
of access to Guantanamo Bay).
Ateba also argues that his speech (and that of other journalists) will be chilled because his
“efforts to fight the White House’s de facto policy of never calling on him made [him] unpopular
with colleagues in the press corps,” and accordingly the new policy “requires” him and other
journalists to “self-censor so that they can ingratiate themselves with their colleagues” who decide
whether he can obtain the press gallery credential that is now a prerequisite to obtaining a White
House hard pass. Mot. at 20. This alleged harm is too speculative to support relief, particularly
in light of the evidence Ateba supplies of his own behavior—years of acting in ways that disgruntle
other correspondents, despite the contemporaneous cost to his relationship with the White House.
See Compl. ¶¶ 46–53. While self-censorship could possibly be a “long-term effect” of the hard
pass policy, the evidence at this stage does not support a finding that First Amendment interests
are “threatened or in fact being impaired.” NTEU, 927 F.2d at 1255 (internal quotation marks
omitted).
Finally, in reply, Ateba argues that he suffers a competitive harm because he is at a
“disadvantage to the other White House journalists who are allowed to have hard-pass access.”
Reply at 20. The Court has found on the evidence before it that Ateba retains access to the White
House facilities on substantially similar terms. Indeed, he has the very access most reporters do
in terms of entry. To the extent “Mr. Ateba’s competition gets more—and more efficient—access
to the White House press areas and the President,” id. at 19, any resulting competitive harm is
12 unlikely to “accrue ‘in the absence of preliminary relief’—that is, before the district court can
resolve the case on the merits.” Singh, 56 F.4th at 109 (quoting Winter, 555 U.S. at 20).
In sum, the Court concludes that Ateba has not demonstrated a likelihood of irreparable
harm. Hence, a preliminary injunction is not warranted.
* * *
For the foregoing reasons, and upon consideration of the entire record herein, it is hereby
ORDERED that [2] plaintiff’s motion for a preliminary injunction is DENIED; it is further
ORDERED that the following schedule shall govern further proceedings:
1. Defendants shall file any motion for summary judgment, including any
Administrative Record, by not later than September 20, 2023. Briefing shall be
limited to 25 pages.
2. Plaintiff shall file any opposition to defendants’ motion combined with any cross-
motion for summary judgment by not later than October 4, 2023. Briefing shall be
3. Defendants shall file any reply in support of their motion combined with any
opposition to plaintiff’s cross-motion by not later than October 11, 2023. Briefing
shall be limited to 15 pages.
4. Plaintiff shall file any reply in support of his cross-motion by not later than October
18, 2023. Briefing shall be limited to 15 pages.
SO ORDERED.
/s/ JOHN D. BATES United States District Judge Dated: September 6, 2023