Argued October 15, 2024 Decided April 8, 2025

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)

Josh Dixon argued the cause for appellant. With him on the briefs were Harmeet Dhillon, Jesse Franklin-Murdock, and Eric Sell.

Steven A. Myers, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Joshua M. Salzman, Attorney.

Before: WILKINS and PAN, Circuit Judges, and ROGERS, Senior Circuit Judge. 2 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 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 3 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