Lois Patterson, Administratrix of the Estate of Gracie Altizer, Deceased Allyne Muncey v. United States

MURNAGHAN, Circuit Judge:

The panel decision in this case, Patterson v. United States, 856 F.2d 670 (4th Cir.1988), has now been vacated by the grant of en banc rehearing. We on the panel wrestled with the question of what would constitute a discretionary function excepting from the thrust of the Federal Tort Claims Act

[ajny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a…