Phiffer

PER CURIAM Opinion; Concurrence by Judge O’SCANNLAIN

ORDER AND AMENDED OPINION

ORDER

The per curiam opinion filed on September 18, 2004, is amended to include a concurrence by Judge O’Scannlain.

OPINION

On April 21, 2003, we filed a memorandum in this case. 63 Fed.Appx. 335 (9th Cir.2003). The Supreme Court granted certiorari, — U.S. -, 124 S.Ct. 2386 , 158 L.Ed.2d 960 (2004), and vacated and remanded for further consideration in light of Tennessee v. Lane, — U.S. -, 124 S.Ct. 1978 , 158 L.Ed.2d 820 (2004). Upon due consideration, we conclude that our initial resolution of this case is consistent with Lane’s holding, and we reissue our original disposition in per curiam form without further amendment.

I

The State appeals the district court’s denial of its motion for judgment on the pleadings based on Eleventh Amendment sovereign immunity. The facts and prior proceedings are known to the parties, and are restated herein only as necessary.

II

The denial of a state’s motion for judgment on the pleadings on the grounds of Eleventh Amendment immunity is an interlocutory appeal and need not await final judgment. See Clark v. California, 123 F.3d 1267, 1269 (9th Cir.1997) (“This…

concurring:

I agree that circuit precedent controls the outcome of this case. See Dare v. California, 191 F.3d 1167 (9th Cir.1999); Clark v. State of California, 123 F.3d 1267 (9th Cir.1997). I nevertheless write separately to stress that, even after Tennessee v. Lane, — U.S. -, 124 S.Ct. 1978 , 158 L.Ed.2d 820 (2004), a palpable tension continues to exist between our circuit’s sovereign immunity jurisprudence and the Supreme Court’s guidance on this issue. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1191 (9th Cir.2003) (O’Scannlain, J., concurring); Hason v. Med. Bd. of Cal., 294 F.3d 1166 , 1167 (O’Scannlain, J., dissenting from denial of rehearing en banc).

Although the Court held in Lane that Title II of the Americans with Disabilities Act validly abrogates state sovereign immunity in the context of courthouse access, that narrow holding was reached by a circumspect analysis that is significantly more exacting than that employed by our circuit in Dare and Clark . — U.S. at -, 124 S.Ct. at 1994 . Indeed, the Lane Court placed significant emphasis upon the fact that courthouse access is a fundamental right that implicates not only disabled persons’ entitlement to equal…