                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-2405


BENJAMIN BELROSE,

                Plaintiff - Appellant,

           v.

THE HARTFORD LIFE & ACCIDENT INSURANCE COMPANY,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:10-cv-00764-LMB-TRJ)


Argued:   January 26, 2012                 Decided:   April 13, 2012


Before KING and DUNCAN, Circuit Judges, and J. Michelle CHILDS,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished opinion.        Judge Childs     wrote   the
opinion, in which Judge King and Judge Duncan joined.


ARGUED: Susan A. Leslie-Fraser, LAW OFFICE OF SUSAN LESLIE-
FRASER, Warrenton, Virginia, for Appellant.      David Edward
Constine, III, TROUTMAN SANDERS, LLP, Richmond, Virginia, for
Appellee.   ON BRIEF: Laura D. Windsor, TROUTMAN SANDERS, LLP,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
CHILDS, District Judge:

     Benjamin Belrose (“Belrose”) appeals the district court’s

order    granting        Hartford     Life   &    Accident    Insurance      Company’s

(“Hartford”) motion to dismiss 1 Belrose’s action challenging the

termination of his long-term disability benefits.                       We affirm.

        Belrose        became     a   full-time      employee      of     the      Camber

Corporation (“Camber”) on August 1, 2002, and became eligible

for disability benefits under the Camber Group Benefit Plan (the

“Plan”) provided to employees through Hartford.

        On September 10, 2002, Belrose underwent arthroscopic knee

surgery.          As    a   result,    Belrose     began     receiving      short-term

disability benefits under the Plan in September 2002.                       After his

surgery, Belrose received a diagnosis of aortic valve disease,

coronary angina, and coronary artery disease.                   In December 2002,

as a result of his heart condition, Belrose applied for and

began receiving long-term disability benefits under the Plan.

Belrose     received        the   benefits       until   October    5,     2005,     when

     1
       Belrose incorrectly states in his brief that the district
court granted summary judgment. J.A. 8. In granting Hartford’s
motion to dismiss, the district court considered the Camber
Group Benefit Plan document which Hartford attached to its
motion. Although Belrose did not attach the Camber Benefit Plan
to his complaint, it was not improper for the district court to
consider the document “in determining whether to dismiss the
complaint because it was integral to and explicitly relied on in
the complaint and because [Belrose does] not challenge its
authenticity.”   Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618
(4th Cir. 1999).



                                             2
Hartford       terminated        the       benefits.            Belrose        appealed           the

termination         of     the   benefits.              The    decision        to        terminate

Belrose’s benefits was affirmed on administrative appeal, and

Hartford issued a final denial letter to Belrose on June 14,

2006.

     Belrose filed a complaint against Hartford in the United

States District Court for the Eastern District of Virginia, at

Alexandria on July 9, 2010.                   Belrose brought a cause of action

under the Employee Retirement Income Security Act (“ERISA”), 29

U.S.C.    §§    1001–1461,          regarding         termination         of   his       long-term

disability        benefits.           Hartford         filed        a    motion     to        dismiss

pursuant       to   Rule       12(b)(6)       of      the     Federal       Rules        of     Civil

Procedure      on    the      grounds      that       the   limitations        period          within

which Belrose could file suit had expired.                               The district court

granted Hartford’s motion.                 Belrose now appeals.

     We    review        de    novo    a   district          court’s       order     granting       a

motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure.              Sucampo Pharms., Inc. v. Astellas Pharma,

Inc., 471 F.3d 544, 550 (4th Cir. 2006).                                  Like the district

court, we “must accept as true all of the factual allegations

contained in the complaint.”                  CGM, LLC v. BellSouth Telecomms.,

Inc.,    664    F.3d     46,     51    (4th    Cir.         2011)       (quoting     Erikson       v.

Pardus,     551     U.S.      89,     94    (2007)).           Further,        “we       draw     all

reasonable inferences in favor of the plaintiff.”                                  Id. (quoting

                                                  3
Nemet   Chevrolet,        Ltd.     v.      Consumeraffairs.com,           Inc.,   591    F.3d

250, 253 (4th Cir. 2009)).

      “‘[W]here        facts     sufficient           to    rule    on    an    affirmative

defense’—including ‘the defense that the plaintiff’s claim is

time-barred’—‘are alleged in the complaint, the defense may be

reached    by    a    motion     to       dismiss     filed   under      Rule   12(b)(6).’”

Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334,

336 (4th Cir. 2009) (citing Goodman v. Praxair, Inc., 494 F.3d

458, 464 (4th Cir. 2007)).

      The policy at issue is an employee benefit plan, which is

governed    by       ERISA.      The       cause    of     action   available     to    those

seeking benefits due under an ERISA plan does not specify a

statute of limitations or a time of accrual.                             See 29 U.S.C. §

1132 (2000).          Generally, ERISA allows plans the flexibility to

set their own limitations periods.                          White v. Sun Life Assur.

Co. of Canada, 488 F.3d 240, 250 (4th Cir. 2007).                                  However,

where a plan does not contain a valid limitations period, courts

may apply the applicable state statute of limitations.                             See id.

at 250 n.4 (“In the absence of a valid contractual provision

governing limitations, we borrow a limitations period from the

law   of   [the       state]   .      .    .   .”);      Dameron    v.    Sinai   Hosp.    of

Baltimore, Inc., 815 F.2d 975, 981–82 (4th Cir. 1987) (applying

the applicable state statute of limitations).                               Regarding the

date of accrual of a limitations period in an ERISA plan, we

                                                4
have       held   that     despite    the        terms      of   accrual     which    may   be

contained within the plan, “[a]n ERISA cause of action does not

accrue until a claim of benefits has been made and formally

denied.”          White,     488    F.3d    at        246   (citing     Rodriguez    v.   MEBA

Pension Trust, 872 F.2d 69, 72 (4th Cir. 1989)).

       Belrose argues that the Plan’s limitations term should be

replaced with Virginia’s five-year statute of limitations for

breach of contract actions,                   see Va. Code Ann. § 8.01-246(2),

because       the      limitations         term       created      an    impossibility      of

performance and was in violation of public policy. 2                                 The Plan

contained a three-year limitations period, which the Plan stated

commenced         on   the   date    Hartford           required      the   beneficiary     to

furnish proof of loss.                Belrose asserts that in order to file

suit in compliance with the limitations provision set forth in

the Plan, he would have had to file suit before he ever received

notice of the final denial of his benefits.                             Belrose argues that

the limitations period began to run on September 10, 2002, when

he underwent arthroscopic knee surgery.                             Applying an accrual

date of September 10, 2002 to the Plan’s three-year limitations

       2
       In the alternative, Belrose asks the court to replace the
three-year limitations period with a five-year limitations
period which he alleges is contained in the short-term
disability section of the Plan.      Having determined that the
district court did not err in applying the Plan’s three-year
limitations period, it is not necessary to address Belrose’s
alternative request.



                                                  5
period, the period in which Belrose could file an action against

Hartford would expire on September 10, 2005, approximately nine

months    before       Hartford’s      final      denial       of    Belrose’s         claim.

Belrose argues that to require filing of an action for benefits

due before the benefits are finally denied is contrary to public

policy.

      However,     in    granting      Hartford’s        motion          to    dismiss,     the

district court reasoned that because the limitations period for

an ERISA claim does not begin to run until the insurer issues a

formal    denial—despite         the    terms      of     accrual             which   may   be

contained       within    the    Plan—Hartford’s           three-year            limitations

period    was    not     unreasonable       or    contrary          to    public      policy.

Finding the three-year limitations period to be reasonable and

in accord with public policy when viewed as accruing on the date

of formal denial of benefits, the district court reasoned, it

was   not       necessary       to     substitute        the        Plan’s        three-year

limitations period with the Virginia statute of limitations for

breach of contract.         We find no error with the reasoning of the

district court.

      Belrose      further       argues          that     the        district         court’s

substitution of the accrual date, without also replacing the

three-year      limitations      period      with       the    Virginia          statute     of

limitations       for     breach       of       contract,       constitutes            “blue-

penciling,” or rewriting the contract’s words to make them work

                                            6
together.       Belrose asserts that such rewriting is inappropriate

because Virginia courts have traditionally refused to rewrite

contracts in order to make them enforceable.                         However, Belrose

brings his claim under ERISA, and determining the time at which

Belrose’s cause of action accrued is governed by federal law

rather than Virginia law.              See White, 488 F.3d at 245 (noting

that, even where a state statute of limitations is applied, the

accrual date is governed by a uniform federal rule); Blanck v.

McKeen, 707 F.2d 817, 819 (4th Cir. 1983) (noting that, in the

case of a federal cause of action, the time at which the cause

of action accrues is governed by federal law rather than state

law).    Accordingly, we find Belrose’s arguments unpersuasive.

       Belrose argues that, even commencing the limitations period

at the date of final denial of benefits, the Plan’s three-year

limitations        period      remains        contrary     to        public     policy.

Specifically, Belrose argues that a limitations period of less

than    five    years     is   contrary   to    public    policy       in     this   case

because the Virginia statute of limitations for actions derived

from written contracts is five years. See Va. Code Ann. § 8.01-

246(2).

       The     Supreme    Court   of    Virginia    has        “upheld      contractual

statutes of limitations for periods shorter than that fixed by

statute when they were not against public policy and the time

period    was    not     unreasonably     short.”        Bd.    of    Supervisors      of

                                          7
Fairfax Cnty. v. Sentry Ins., 391 S.E.2d 273, 275 (Va. 1990)

(citing Bd. of Supervisors v. Sampson, 369 S.E.2d 178, 180 (Va.

1988)).      A limitations period of three years fits well within

the intent of Virginia’s legislature.                          Virginia’s legislature

has   expressed       its    intent      with       regard     to       the    limitation    of

actions     derived    from      insurance          policies      by     its    enactment    of

Section     38.2-314        of   the     Virginia       Code.            Section      38.2-314

provides, “No provision in any insurance policy shall be valid

if it limits the time within which an action may be brought to

less than one year after the loss occurs or the cause of action

accrues.”     Va. Code Ann. § 38.2-314.                 Thus, a limitations period

of three years does not appear to be contrary to public policy.

       When viewed in light of this court’s prior holding that an

ERISA   cause   of     action         does    not    accrue       until       the    claim   for

benefits has been formally denied, the Plan’s limitations period

is    not   unreasonable         or    contrary       to     public       policy,      and   is

therefore    valid.         Thus,      when    faced       with     a    valid      limitations

period, the district court did not err in applying the Plan’s

limitations period rather than substituting the Virginia statute

of limitations for breach of contract actions.                            Belrose received

a formal denial of his claim for benefits on June 14, 2006.

Therefore, the period in which Belrose could bring a cause of

action against Hartford for denial of benefits expired on June

14, 2009.     Belrose filed his complaint on July 9, 2010, over a

                                               8
year   after   the    limitations      period   expired.     Therefore,      the

district   court     did   not   err   in   granting   Hartford’s   motion    to

dismiss.

       Accordingly, we affirm the judgment of the district court.



                                                                     AFFIRMED




                                        9
