dissenting:
I would affirm on the excellent, comprehensive opinion of Judge McLaughlin reported at 822 F.Supp. 906 (E.D.N.Y.1993). From the majority’s refusal to do so, I respectfully but emphatically dissent.
*1132The only two other circuits that have ruled on this issue have agreed with Judge McLaughlin. City of Detroit v. Franklin, 4 F.3d 1367 (6 Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1217, 127 L.Ed.2d 563 (1994); Tucker v. U.S. Dept. of Commerce, 958 F.2d 1411 (7 Cir.), cert. denied, — U.S.-, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992). The majority decision in the instant case is the only contrary one. Thus it creates a conflict among the circuits.