United States v. Norman Varner
948 F.3d 250
5th Cir.2020Background
- Defendant Norman Varner (federal prisoner) asked the district court to change the name on his judgment of commitment to "Kathrine Nicole Jett," attaching a Kentucky state-court name-change order and explaining he is transgender.
- The government opposed, arguing no defect in the original judgment and that a preferred name is not a basis to amend under Fed. R. Crim. P. 36; BOP policy allows a secondary/alias name and use of preferred pronouns in interactions.
- The district court construed the filing as a Rule 36 motion to amend the judgment and denied it on the merits, also questioning the validity of the Kentucky name change and noting alternative relief via BOP policies.
- Varner appealed and asked this court to use female pronouns when addressing him and submitted other procedural motions (photograph, appearance, out-of-time reply brief).
- The Fifth Circuit majority held the district court lacked jurisdiction to entertain the name-change motion because it was an unauthorized postconviction motion not falling under Rule 35, Rule 36, § 3582(c)(2), § 3742, or § 2255; it therefore vacated the district court’s judgment and denied Varner’s pronoun and other procedural motions.
- Judge Dennis dissented, arguing Rule 36 provided jurisdiction to consider the motion (even if it fails on the merits) and that this court should have granted Varner’s limited request that this court use female pronouns in its proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court had jurisdiction to amend judgment to reflect a post-judgment name change | Varner: district court may correct judgment to reflect new legal name (attached state order) | Govt: motion does not allege clerical error; name preference is not a basis to amend under Rule 36; BOP policy suffices | Court: District court lacked statutory jurisdiction; motion was an unauthorized postconviction filing and must not have been entertained |
| Whether Rule 36 authorizes changing committed name years after judgment | Varner: (implicitly) Rule 36 or other authority allows correction | Govt: Rule 36 only corrects clerical/mindless errors, not substantive post-judgment name changes | Held: Not a clerical error; Rule 36 inapplicable; motion unauthorized |
| Whether court may order use of a litigant’s preferred pronouns | Varner: court and parties should use female pronouns; refusal is discriminatory | Govt: no legal basis; courts may use preferred pronouns but not required | Held: No authority to compel pronoun usage; motion denied (majority); dissent would have granted this court’s use only |
| Relief alternatives and practical considerations of compelled pronoun use | Varner: seeks recognition and respect; name change on judgment achieves that | Govt: BOP permits secondary names and pronoun accommodations; judicial orders compelling pronouns raise impartiality, enforcement, and practical issues | Held: BOP policy provides practicable relief; courts should not be enlisted to compel pronoun usage; contempts/enforcement and neutrality concerns weigh against ordering pronoun use |
Key Cases Cited
- United States v. Early, 27 F.3d 140 (5th Cir.) (motion must arise under a statutory grant to provide jurisdiction)
- United States v. Buendia-Rangel, 553 F.3d 378 (5th Cir. 2008) (Rule 36 limited to clerical mistakes)
- United States v. Ramirez-Gonzalez, 840 F.3d 240 (5th Cir. 2016) (Rule 36 is narrow—corrects mechanistic errors)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (distinguishing jurisdictional defects from merits failures)
- Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (courts may, as courtesy, use transgender litigant’s preferred pronouns)
- Farmer v. Haas, 990 F.2d 319 (7th Cir. 1993) (respecting litigant’s preferred pronouns as courtesy)