JOSÉ A. CABRANES, Circuit Judge:

Petitioner J. Scott Bechtel seeks review of a September 30, 2011 final decision and order of the Administrative Review Board ("ARB") of the United States Department of Labor ("DOL"), affirming an administrative law judge's ("ALJ") order dismissing Bechtel's retaliation claim under the Sarbanes-Oxley Act (the "Act"), 18 U.S.C. § 1514A. We take this opportunity to clarify the burden-shifting framework applicable to whistleblower retaliation claims under the Act. For the reasons stated below, the petition for review is denied.

BACKGROUND

Competitive Technologies, Inc. ("CTI") is a publicly held company that acts as an agent for patent-holders seeking to license or sell technologies to entities that will bring the technologies to market. CTI hired Bechtel in February 2001 to serve as vice president of technology commercialization. Bechtel's job consisted of identifying clients, acquiring rights to their technologies, and licensing those technologies to generate licensing fees for CTI. At the time Bechtel was hired, CTI was not profitable — indeed, CTI reported net operating losses for the fiscal years ending July 31, 2001, July 31, 2002, and July 31, 2003.

In June 2002, CTI hired John Nano to serve as president and CEO. Nano aimed to generate immediate revenue for the company, in order to prevent bankruptcy. Soon after Nano joined the company, he and Bechtel began to disagree. For example, in October 2002, Bechtel reported to CTI's general counsel that he suspected Nano of not complying with certain legal requirements, though it is unclear whether those suspicions had any firm foundation.

In December 2002 and March 2003, CTI asked Bechtel to join a committee to review CTI's financial transactions and make recommendations regarding the Act's disclosure requirements. During both meetings, Bechtel argued that certain aspects of the company's finances should be disclosed, pursuant to the Act. The other members of the committee disagreed. Bechtel, worried about his own liability under the Act, refused to sign the relevant disclosure forms.

Meanwhile, CTI's financial condition did not improve. In May 2003, CTI's board of directors approved Nano's proposal to reduce operating costs by, among other things, discharging personnel, including Bechtel. On June 30, 2003, after CTI's situation had further deteriorated, Nano fired Bechtel.

As this case already has a lengthy procedural history, we recount only the relevant events here. In September 2003, Bechtel filed a Sarbanes-Oxley Act whistleblower complaint with the Occupational Safety and Health Administration ("OSHA"), an agency within the DOL, alleging principally that CTI illegally retaliated against him because he refused to sign the Sarbanes-Oxley Act disclosure forms. In February 2005, after investigating the complaint, the Regional Administrator of OSHA determined that there was reasonable cause to believe that CTI had violated the Act. Based on this ruling, OSHA ordered that Bechtel receive, among other relief, reinstatement, back wages, and compensatory damages.

CTI then filed objections to OSHA's findings and requested a formal hearing before an ALJ. On October 5, 2005, after a hearing, the ALJ denied the relief sought by Bechtel and dismissed Bechtel's complaint. Bechtel appealed that decision to the ARB, which, on March 26, 2008, remanded the case to the ALJ after determining that the ALJ had not applied the appropriate legal standard under the Act. On remand, the ALJ once again dismissed the complaint in a decision and order dated January 20, 2009. Finally, on September 30, 2011, the ARB affirmed the ALJ's second order dismissing the complaint. See Bechtel v. Competitive Technologies, Inc., ARB Case No. 09-052, 2011 WL 4889269 (ARB Sept. 30, 2011).

This appeal followed.

DISCUSSION

When reviewing a final decision and order of the ARB regarding a whistleblower retaliation claim brought pursuant to 18 U.S.C. § 1514A, Courts of Appeals are directed to use the rules and procedures set forth in the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06. 49 U.S.C. § 42121(b)(4)(A) ("Review [by a Court of Appeals] shall conform to [5 U.S.C. §§ 701-06].").1 We will uphold a decision by the ARB if it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), or "unsupported by substantial evidence," id. § 706(2)(E). Under this deferential standard of review, "we must assess, among other matters, whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Judulang v. Holder, 565 U.S. ___, 132 S.Ct. 476, 484, 181 L.Ed.2d 449 (2011) (internal quotation marks omitted). We will set aside the ARB's decision only if it

Nat'l Assoc. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (quotation marks omitted).

A. Statutory Framework

Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, seeks to combat what Congress identified as a corporate "culture, supported by law, that discourage[s] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally." S.Rep. No. 107-146, at 5 (2002). To accomplish this goal, § 1514A "protects `employees when they take lawful acts to disclose information or otherwise assist ... in detecting and stopping actions which they reasonably believe to be fraudulent.'" Guyden v. Aetna, Inc., 544 F.3d 376, 383 (2d Cir.2008) (quoting S.Rep. No. 107-146, at 19). Specifically, § 1514A makes it unlawful for publicly traded companies to "discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee... to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of" certain laws, rules, and regulations addressing various types of fraud.2 18 U.S.C. § 1514A(a)(1).

The relevant burdens of proof for whistleblower retaliation claims under § 1514A are contained in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21"), 49 U.S.C. § 42121(b), see 18 U.S.C. § 1514A(b)(2),3 and the Code of Federal Regulations at 29 C.F.R. §§ 1980.100-1980.115. Although we have not previously described the elements and burdens of proof set forth by these provisions, see 49 U.S.C. § 42121(b)(2)(B)(iii), (iv); 29 C.F.R. § 1980.109(a), (b),4 our sister Courts of Appeals have. As they have explained:

Harp v. Charter Commc'ns, Inc., 558 F.3d 722, 723 (7th Cir.2009) (alterations omitted) (quoting Allen v. Admin. Review Bd., 514 F.3d 468, 475-76 (5th Cir.2008), in turn quoting 49 U.S.C. § 42121(b)(2)(B)(iv)). We agree that this framework is established by the relevant regulations and is consistent with the statute.5 See 49 U.S.C. § 42121(b)(2)(B)(iii), (iv); 29 C.F.R. § 1980.109(a), (b).

B. The ALJ's Standard

Bechtel's central argument on appeal is that, even after the ARB remanded the case, the ALJ persisted in applying an erroneous legal standard. He argues that, for this reason, the ARB's second and final decision, affirming the ALJ's determination, ought to be reversed.

In the words of the ARB, the ALJ's second decision "is not easily deciphered." Bechtel, 2011 WL 4889269, at *1. In that decision, the ALJ, relying upon the ARB's 2008 remand order, stated clearly and accurately the correct legal framework for evaluating a claim under § 1514A. See Joint App'x at 114. Unfortunately, the ALJ then proceeded to make further elaborations. She explained that until the employee meets his or her burden of proof, the employer "need only articulate a legitimate business reason for its action." Id. According to the ALJ, if the employer presents evidence of a legitimate reason for the adverse action, the employee may prevail by proving "by a preponderance of the evidence that the employer's articulated legitimate reason is pretext for discrimination," id. — apparently an alternative to proving the four elements of the complainant's prima facie case, as required under the statute and relevant regulations. If the employee proves pretext, the ALJ asserted, the employer may avoid liability by presenting clear and convincing evidence that it had a nondiscriminatory justification for the adverse employment action. Id. In other words, the ALJ seems to have thought that, in addition to the framework specified by the statute and regulations, there existed a second burden-shifting system that applied when the complainant failed to prove a prima facie case by a preponderance of the evidence.

The ALJ's alternative burden-shifting scheme has no basis in any relevant law or regulation, and is simply incorrect. See note 4, ante. Indeed, the ARB observed as much. Bechtel, 2011 WL 4889269, at *10 & n. 91. As noted above, Bechtel's sole burden was to prove, by a preponderance of the evidence, that his protected activity contributed to the adverse employment action. If he had successfully made such a showing, the burden would then have shifted to CTI to prove, by clear and convincing evidence, that it would have taken the same action absent Bechtel's protected activity.

The ALJ's error is beside the point, however, because the ARB recognized that error and explained why it did not affect the outcome of the case. Cf. Nat'l Assoc. of Home Builders, 551 U.S. at 659, 127 S.Ct. 2518 ("The federal courts ordinarily are empowered to review only an agency's final action, see 5 U.S.C. § 704, and the fact that a preliminary determination by a local agency representative is later overruled at a higher level within the agency does not render the decisionmaking process arbitrary and capricious."). In particular, the ARB concluded, relying on the evidentiary findings of the ALJ, that Bechtel had failed to prove by a preponderance of the evidence that his protected activity was a contributing factor in the adverse employment action. Bechtel, 2011 WL 4889269, at *7-10. Because Bechtel's failure to prove this element was a sufficient reason to rule against his claim, the ALJ's legal error with respect to an additional aspect of his claim is immaterial.6

In these circumstances, there was no need for the ARB to remand a second time to the ALJ when the correct outcome was clear. Indeed, the Administrative Procedure Act itself includes "the same kind of `harmless-error' rule that courts ordinarily apply in civil cases." Shinseki v. Sanders, 556 U.S. 396, 406, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009); see 5 U.S.C. § 706 ("[A] court shall review the whole record ... and due account shall be taken of the rule of prejudicial error"); cf. Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 338 (2d Cir.2006) ("[A]n error does not require a remand if the remand would be pointless because it is clear that the agency would adhere to its prior decision in the absence of error."). The ARB did not, therefore, act arbitrarily or capriciously, or abuse its discretion, in finding that the ALJ's error was harmless and in affirming the dismissal of the complaint.

C. Proof by "Inference"

Bechtel also argues that the ALJ erred on remand by requiring him to prove the elements of his case "by a preponderance of the evidence and not by mere inference." Joint App'x 114 (emphasis supplied). Bechtel contends that he was entitled to prove his case "by inference," and that we should resuscitate the ALJ's finding in her original 2005 order that his protected activities contributed to his discharge.

Bechtel's logic is flawed in several respects. First, the ALJ's reference in her second order to proof "by mere inference" simply was a response to the improper burden-shifting framework used in her first order, see Joint App'x 114 n. 3, and was not, as Bechtel suggests, an assertion that she could make no factual inferences from the evidence. For instance, the ALJ considered the timing of the protected activity relative to the timing of the adverse action, see Joint App'x 117-18, which is an inference-based assessment. The fact that the ALJ declined to make that inference in favor of Bechtel, of course, does not demonstrate that she applied an erroneous standard. Second, Bechtel offers no basis for us now to resuscitate a specific finding of the ALJ that was vacated by the ARB and then replaced with new factual findings of the ALJ on remand. The ARB did not err, much less act arbitrarily or capriciously or in abuse of its discretion, in affirming the dismissal of Bechtel's complaint, notwithstanding the ALJ's comment regarding proof "by mere inference."

D. Loss of Status as an Officer

Bechtel contends that the ALJ incorrectly found that his loss of status as an officer of CTI did not constitute a prohibited act within the meaning of the Act. See 29 C.F.R. § 1980.102(a) (setting out prohibited acts). As he concedes, however, he did not raise this issue before the ARB, see Reply Br. 19, and we will not consider it for the first time on appeal. See Formella v. U.S. Dep't of Labor, 628 F.3d 381, 390 (7th Cir.2010) ("[I]n an adversarial setting it is reasonable to expect the parties to raise and develop any issues that they want the ALJ and the ARB to address, on pain of forfeiting any issues that they do not mention." (citing Sims v. Apfel, 530 U.S. 103, 109-10, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000))); see also United States v. Dupree, 706 F.3d 131, 136 (2d Cir.2013) ("[W]e will not consider matters raised for the first time on appeal.").

E. Blacklisting Claim

Bechtel argues that "[t]he ARB incorrectly addressed [his] post-employment blacklisting claim." Pet'r's Br. 43. There seems to be some confusion surrounding the disposition of this claim by the ALJ and ARB. In her 2005 decision, the ALJ dismissed this claim, determining that she had no authority to consider a claim that OSHA had not investigated. Joint App'x 80. Because the ARB did not address that issue in its 2008 remand order, the ALJ, in her 2009 decision, simply incorporated the text of her 2005 decision with respect to Bechtel's post-employment claim. Id. at 122. The ARB then upheld the ALJ's dismissal of this claim on slightly different grounds, explaining that no evidence in the record showed that Bechtel amended his complaint to include allegations relating to the supposed post-employment blacklisting. Bechtel, 2011 WL 4889269, at *12; see 29 C.F.R. § 18.5(e) (setting out the procedure for amending complaints before an ALJ).

Bechtel now argues that the ARB erred in determining that he did not amend his complaint and refers us to two letters addressed to OSHA from his attorney. Pet'r's Br. at ADD-1-10. He claims that these letters provide evidence that he did indeed amend his complaint. These letters, however, were not part of the administrative record and are not properly before us on this appeal. See Kappos v. Hyatt, 566 U.S. ___, 132 S.Ct. 1690, 1696, 182 L.Ed.2d 704 (2012) ("Under the APA, judicial review of an agency decision is typically limited to the administrative record."); Riverkeeper, Inc. v. EPA, 358 F.3d 174, 184 (2d Cir.2004) ("Review under [5 U.S.C. § 706] is narrow, limited to examining the administrative record to determine whether the agency decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." (alteration and internal quotation marks omitted)). We therefore have no reason to conclude that the ARB's decision was arbitrary or capricious or that it was not based on substantial evidence found in the record. See 5 U.S.C. § 706.

F. Evidentiary Rulings

Finally, Bechtel argues that the ARB erred in two evidentiary rulings. First, he contends that the ARB should have reversed the ALJ's denial of his motion to compel additional discovery. Second, he asserts that the ARB should have taken official notice of a proceeding concerning CTI and John Nano in the United States District Court for the District of Connecticut. See 29 C.F.R. § 18.201 (governing official notice of adjudicative facts).

Substantially for the reasons stated by the ARB,7 we find no merit to Bechtel's claim that the ARB should have reversed the ALJ's denial of the motion to compel. Bechtel, 2011 WL 4889269, at *12-13. Similarly, we find no abuse of discretion in the ARB's decision not to take judicial notice of allegations relating to John Nano's character and credibility in a separate case. See 29 C.F.R. § 18.201(b);8 cf. Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70-71 (2d Cir.1998) (testimony from another case regarding facts that are not common knowledge or derived from an unimpeachable source is not properly subject to judicial notice). In short, we conclude that the ARB's decision with respect to these issues was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

CONCLUSION

To summarize, we hold:

The petition for review is DENIED.