How to Cite an Unpublished Case

Three different things get called "unpublished," and they take different citation forms. The first is a decision that simply has no reporter citation — most federal district court opinions fall here, and they live only on Westlaw, Lexis, Bloomberg Law, or the court's docket. The second is a decision the court affirmatively designated as nonprecedential or "not for publication," which is a statement about its authority, not about whether you can find it. The third is a table decision: the reporter prints only the case name, docket number, and disposition, with the reasoning available only electronically.

The Bluebook's fix for all three is the same starting point. If the case has no reporter citation, cite the electronic database. If it has a reporter citation but the reasoning is not there (a table), you can cite the table and add the database identifier so the reader can find the text.

Note that "unpublished" and "unreported" have drifted apart. A Ninth Circuit memorandum disposition is nonprecedential but is fully available in a public database. A recent district court opinion may be precedentially unremarkable but perfectly citable. Do not assume a case is weak authority just because it lacks an F.3d cite; find out what the issuing court's rules say.

Rule 10.8.1(a) governs. The elements, in order: case name; the docket number; the database identifier; the star pincite; and a parenthetical containing the court abbreviation and the full date (month, day, year, not just the year).

Westlaw form: Smith v. Jones, No. 20-cv-01234, 2021 WL 1234567, at *3 (S.D.N.Y. Apr. 2, 2021). Lexis form: Smith v. Jones, No. 20-cv-01234, 2021 U.S. Dist. LEXIS 54321, at *7 (S.D.N.Y. Apr. 2, 2021). Those case names and numbers are illustrative placeholders, not real citations — swap in your own.

A few mechanics that trip people up. The docket number is reproduced as the court styles it, including the division prefix and case-type code (No. 3:19-cv-00456; No. 87 C 9535). If there are consolidated dockets, use "Nos." and list them, separated by commas. The database identifier has no comma inside it, but a comma precedes "at." The pincite always carries an asterisk: at *3, and a span is at *3–4 (repeat the asterisk on the second number in Westlaw practice only if you are following a source that does; the Bluebook uses at *3–4). Abbreviate the court under Table 1 and Table 7 exactly as you would for a published case.

Cite the database you actually used. Star pagination in Westlaw and Lexis is not the same, so *7 in one is not *7 in the other. Never mix a Westlaw number with a Lexis pincite.

For a very recent decision that has not been picked up by a database, cite the slip opinion under Rule 10.8.1(b): Smith v. Jones, No. 20-cv-01234, slip op. at 4 (S.D.N.Y. Apr. 2, 2021). The pincite is the page of the slip opinion itself, with no asterisk. If you obtained it from the docket, you may add a parenthetical identifying the docket entry, and in a brief you will often be expected to attach a copy.

For a case that is filed but not yet decided, give the name, docket number, and court, and identify the status: Smith v. Jones, No. 20-cv-01234 (S.D.N.Y. filed Apr. 2, 2021). For a pending appeal, note it in subsequent history — appeal docketed, No. 21-567 (2d Cir. May 1, 2021).

If the only thing you have is an order rather than an opinion, add "(order)" to the parenthetical after the date so the reader knows what she is getting.

From 2001 through 2021, West collected nonprecedential federal court of appeals decisions in the Federal Appendix, abbreviated F. App'x under Table 1. Cite those like an ordinary reporter case: Smith v. Jones, 500 F. App'x 123, 125 (4th Cir. 2012). The reporter name itself signals the decision's nonprecedential status.

West discontinued the Federal Appendix, so newer nonprecedential circuit decisions have no reporter citation and are cited to Westlaw or Lexis in the Rule 10.8.1(a) form. That means an older unpublished Fourth Circuit case and a recent one will look structurally different in your table of authorities. That is correct, not an error.

Table decisions in the federal reporters — where only the disposition is printed — are cited by adding "(table)" or by giving both the table cite and the database identifier so the reader can reach the text: Smith v. Jones, 900 F.2d 260 (table), No. 89-1234, 1990 WL 12345, at *2 (7th Cir. Feb. 1, 1990).

This is where the real risk lives, and the answer varies by court. Federal Rule of Appellate Procedure 32.1 bars a federal court of appeals from restricting citation of opinions designated unpublished, nonprecedential, or the like that were issued on or after January 1, 2007, and requires you to file a copy if the decision is not available in a publicly accessible electronic database. Pre-2007 dispositions are a different matter: Ninth Circuit Rule 36-3, for instance, still restricts citation of that court's earlier unpublished dispositions.

State rules diverge sharply. California Rule of Court 8.1115 flatly forbids citing unpublished California Court of Appeal and superior court appellate division opinions except for narrow purposes such as law of the case, res judicata, or collateral estoppel — citing one in a California brief is a genuine mistake, not a stylistic one. Other states permit citation but require you to label the decision and treat it as persuasive only. Some require you to attach a copy. Before you rely on any nonprecedential decision, read the citing court's local rules and the issuing court's publication rule.

On the citation itself, Rule 10.6.1 lets you add a weight-of-authority parenthetical, and many courts require a notation such as (unpublished) or (not designated for publication) immediately after the date parenthetical. If the local rule specifies wording, use that wording verbatim; local rules override the Bluebook in filed documents.

Short form for a database case keeps the database identifier: Smith, 2021 WL 1234567, at *5. Do not shorten it to "Smith, at *5." If the immediately preceding citation is to the same case, use Id. at *5. For a slip opinion, the short form is Smith, slip op. at 6.

Because there is no reporter page, the star pincite is the only way a reader can verify you. Always give one for a proposition attributed to the case; a bare database identifier with no pincite is the unpublished-case equivalent of citing a case without a page number.

Watch for later publication. Cases move: a district court opinion cited to Westlaw in October may appear in F. Supp. 3d by March. Before you file or submit, run the case again and cite the reporter if one now exists. Bluebook practice is to cite the reporter once available.

Run a short checklist on every unpublished citation. Confirm the docket number matches the court's caption. Confirm the date parenthetical has month, day, and year. Confirm the pincite carries an asterisk and comes from the same database as the identifier. Confirm the court abbreviation follows Table 1. Then confirm the decision is citable in the court you are filing in and add any required unpublished notation.

Finally, ask whether you should be citing it at all. A nonprecedential district court or memorandum disposition can be useful for a factual analogy or to show a court has confronted the problem, but it will not carry an argument that needs binding authority. If a published case says the same thing, cite the published case.