ORDER
Appellant’s petition for rehearing is denied.
Thе opinion filed February 24, 2004, is hereby replaced with the attached revised opinion.
OPINION
Defendant Fernando Ceballos-Martinez seeks to appeal his sentence imposed by the district court. Because Mr. Ceballos-Martinez’s notice of appеal fails to comport with Fed. R.App. P. 4(c)(1), we lack subject-matter jurisdiction to consider this appeal. Therefore, we DISMISS.
I. Background
A federal grand jury indicted Mr. Cebal-los-Martinez on one count of possessing with intent to distribute more than 500 grams of cocaine, to which hе pleaded guilty. Mr. Ceballos-Martinez seeks to appeal the determination of the length of his sentence. The district court, however, received Mr. Ceballos-Martinez’s notice of appeal, which he personally filed while in prison, 1 five days after thе deadline for filing such a notice. Moreover, his notice of appeal failed to include a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement setting forth the date he deposited his notice of appeal with prison offiсials and that he pre-paid first-class postage for his filings, and we have not subsequently received such a filing.
Mr. Ceballos-Martinez argues that the district court’s receipt of his notice of appeal five days after the filing deadline is timely under the “prisoner mailbоx rule.” 2 See Fed. R.App. P. 4(c)(1). In response, *715 the government argues that we lack subject-matter jurisdiction to entertain this appeal under Fed. R.App. P. 4(c)(1). 3
II. Discussion
“Without jurisdiction [a] court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases tо exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”
Steel Co. v. Citizens for a Better Env’t,
The Rule states:
If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. [2] If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. [3] Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Fed. R.App. P. 4(c)(1).
Mr. Ceballos-Martinez’s notice of appeal lacks a declaration in compliance with 28 U.S.C. § 1746 or notarized statement setting forth the notice’s date of deposit with prison officials and lacks a statement that first-class рostage was pre-paid, and he has not subsequently filed such a form in compliance with Rule 4(c)(1). The jurisdictional question we must address, then, is whether Mr. Ceballos-Martinez’s notice of appeal, even though it fails to include the above referenced provisions, complies with the congressional mandate that “[tjimely filing may be shown by a declaration ... or notarized statement!)]” Id. (emphasis added). In other words, we must decide whether Mr. Ceballos-Mar-tinez may prove the date of deposit and pre-payment of postage by means other than a declaration in cоmpliance with 28 U.S.C. § 1746 or a notarized statement.
We note that the Rules of Appellate Procedure are replete with examples of Congress using “must” to denote necessity and “may” to denote permissiveness. Compare Fed. R.App. P. 4(b)(1)(A) (“[A] defendant’s notice of appeal must be filed _”) (emphasis added) with Fed. R.App. P. 4(a)(5)(A) (“The district court may extend the time to file ....”) (emphasis added). Given this distinction, reading the third sentence of the Fed. R.App. P. 4(c)(1) in isolation could lead one to believe that the Rule only lists two of the many ways in which a prisoner may prove timely compliance. We rejеct this myopic approach to statutory construction.
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The principle that we must interpret statutes and rules of procedure based on their plain language,
see Watt v. Alaska,
First, when placеd into the context of Fed. R.App. P. 4(c)(1) as a whole, we find that “may,” as used in the last sentence of the Rule, references a choice between the means of proving compliance — not an option to ignore the provisions of the third sentenсe altogether. The Rule has the following structure. The first sentence establishes the mailbox rule itself (i.e., a notice of appeal is timely filed if given to prison officials prior to the filing deadline). The second sentence is written as a conditional statеment, stating that if the prison has a legal mail system, then the prisoner must use it as the means of proving compliance with the mailbox rule. The third sentence applies to those instances where the antecedent of the second sentence is not satisfiеd (i.e., where there is not a legal mail system). Hence, we read the third sentence in the context of the preceding sentence. As such, the third sentence— instead of absurdly requiring a prisoner to use a nonexistent legal mail system pursuant to the provisions of thе second sentence — provides that a prisoner “may” file an appropriate declaration or notarized statement with his notice of appeal in lieu of documenting the time of deposit by way of the legal mail system. Thus, when read in context, “may” does not reflect a congressional intent to render the provisions of the third sentence permissive; rather, “may” references Congress’s intent to allow prisoners a filing option for those cases where a legal mail system is not available.
Second, at least one court of appeals interprets Fed. R.App. P. 4(c)(1) as we do, and our review of the law finds no contrary interpretations. The Eighth Circuit holds that the declaration and notarization provisions of the Rule are mandatory in those instances where the prison lacks a legal mail system.
See Grady v. United States,
Third, interpreting the requirements of the Rule’s third sentence as mere suggestions would render large portions of Fed. R.App. P. 4(c)(1) meaningless and run contrary to established caselaw. For example, under such a permissive interpretation of the Rule, a defendant could file an affi
*717
davit attesting under penalty of perjury that he filed his notice of appeal by the required date, and yet not attest that he paid first-class postage on his filings. If “may” reduces the requirements of the Rule’s last sentence to mere suggestion, a reviewing court could not refuse to accept the attestation. Thus, in this hypothetical, even though the attestation lacks the first-class-postage-attestation rеquirement of Rule 4(c)(1), the prisoner would simply be exercising his right to prove compliance in an alternate form. This permissive interpretation of the Rule would render its specific requirements mere surplusage, contrary to a cardinal canon of statutory construction.
See Duncan v. Walker,
As we noted above, Mr. CeballosMartinez’s notice of appeal has neither a declaration of compliance nor a notarized statement, and it fails to affirm that he pre-paid first-class postage for any of his filings. Further, he has not subsеquently filed a declaration or notarized statement in compliance with Rule 4(c)(1). Because we find that Mr. Ceballos-Martinez failed to employ the methods provided by Congress to establish compliance with the mailbox rule, we dismiss for lack of subject-mattеr jurisdiction.
At first blush, our holding may appear to be in tension with established law dictating that we liberally construe a pro se litigant’s pleadings, see
White v. Colorado,
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Moreover, the rule that we liberally interpret filings by pro se parties is less persuasive in the context of Rule 4(c)(1) because Congress adopted the Rule 4(c)(1) knowing full well that it would apply almost exclusively to pro se parties. Nevertheless, rather than draft leniency into the Rule, Congress provided two speсific methods to prove timely compliance. Because Congress chose this route, we cannot graft onto the Rule additional methods of proving timely compliance. Therefore, in hewing faithfully to the specific requirements of Rule 4(c)(1), we do nothing more than recognize that failure to comply with a jurisdictional mandate deprives this Court of jurisdiction to consider the merits of an appeal.
See Parker,
III. Conclusion
Because Congress has delineated the methods in which a party may prove timely compliancе with Fed. R.App. P. 4(c)(1), and because Mr. Ceballos-Martinez has not complied with those requirements, we DISMISS his appeal for lack of subject-matter jurisdiction.
Notes
. Mr. Ceballos-Martinez was confined in the Torrance County Jail in Estancia, New Mexico. The record reflеcts that this facility does not have a "legal mail system."
. Mr. Ceballos-Martinez and the government briefed the underlying merits of this appeal as well. Because we dismiss for lack of subject-matter jurisdiction, we do not reach these issues.
. The government argues that Mr. Ceballos-Martinez may not employ the prisoner mailbox rule at all because he was not technically pro se at the time of filing. Rather than reaching that issue, we decide today that, even assuming that he was pro se, Mr. Cebal-los-Martinez failed to prove timely compliance as required by Fed. R.App. P. 4(c)(1). We also do not decide whether a represented prisoner may take advantage of Rule 4(c)(1).
. While we note that the text of the rule does not require the prisoner to file this attestation at any particular time, at the very least, the prisoner must file it before we resolve his case. If the prisoner fails to do so, we lack jurisdiction to consider his appeal. Thus, to avoid dismissal of their appeals, we strongly encourage all prisoners to include with their notices of appeal a declaration or notarized statement in compliance with Rule 4(c)(1).